Factual Background on Denial of Scheduling Order Amendment

​The plaintiff brought suit in the Circuit Court for Talbot County for a car accident and resulting permanent injuries to his foot, and lost business profits. (Op. at 2-3).

The circuit court’s scheduling order designated June 2022 for the defense expert witness disclosures and a discovery cut-off of October 21, 2022. However, the defense did not designate experts by the deadline. (Id. at 3).

Eight days before the close of discovery, the parties filed a joint motion to modify the scheduling order based on the plaintiff’s lawyer’s medical leave. The court granted the motion, designated November 4 as the new deadline for disclosing the defense expert witness, and January 19, 2023, as the latest discovery cut-off. (Id. at 3-4).

Ten months after being served with interrogatories, the plaintiff provided his answers. The defense then deposed him in December. However, the defense did not designate an expert by the November deadline. (Id. at 4).

Almost 2 months after the second discovery deadline, the defense filed a consent motion to extend the scheduling order. The motion stated that the parties had been attempting to settle the case before conducting extensive discovery but had been unable to do so. The court issued a denial of the scheduling order amendment and scheduled the trial for January 2024. (Id.).

The defense filed a motion for reconsideration, noting that the extension would not prejudice either party since the trial was 10 months away. The court also denied this motion. (Id. at 4-5).

The jury then returned a verdict in favor of the plaintiff for over $450,000. Consequently, the defense appealed. (Id. at 1).

Appellate Court of Maryland

​An abuse-of-discretion standard governs discovery decisions. (Id. at 8). The Appellate Court concluded that the circuit court properly exercised its discretion in the denial of the scheduling order amendment because it could have reasonably found that the defense had not substantially complied with the scheduling order. (Id. at 10).

​The circuit court reviewed the dates of various activities and concluded that no surprising information had developed. (Id. at 12). Applying the Taliaferro factors, the Appellate Court found that the defendant did not explain why it did not identify experts. There was no evidence of a good-faith effort at compliance. (Id. at 14).

The Appellate Court rejected the defense’s blame on the plaintiff’s delay in responding to interrogatories. The court said ultimately the burden falls on the defendant to prepare its defense. (Id. at 15).

The defense failed to engage in trial preparation outside of deposing the plaintiff. It waited until months past the discovery deadline to request the second extension. Settlement discussions do not override the duty to prepare for trial if the parties do not settle. (Id. at 16).

The Appellate Court cautioned that modification of scheduling orders, particularly for a second time, is generally reserved for extraordinary circumstances. (Id. at 17). The plaintiff’s late interrogatory answers, additional particulars revealed in his deposition, and engaging in settlement discussions were not extraordinary circumstances warranting a second modification. (Id.).

Holding

The Appellate Court concluded that the defense did not substantially comply with the scheduling order. As a result, the court did not reach the question of whether the defense provided good cause for noncompliance. The circuit court did not abuse its discretion in denial of the scheduling order amendment. (Id.).

For the same reason, the Appellate Court affirmed the exclusion of the defense’s expert witness, a police officer who would have testified that the data from the plaintiff’s car showed he was accelerating and traveling twice the speed limit at impact. (Id. at 1-2,18). Finally, the Appellate Court held that the plaintiff had failed to introduce evidence that any contributory negligence by the plaintiff was a proximate cause of the accident. As a result, the trial court properly granted judgment for the plaintiff on the issue of contributory negligence. (Id. at 19-23).

Commentary By Baltimore Medical Malpractice Lawyer Mark Kopec on Denial of Scheduling Order Amendment

​This denial of the scheduling order amendment is a very tough result for the defense lawyer and client. This opinion is a reminder of the very deferential standard applied to the trial court. An appeals court will uphold a trial judge’s strict enforcement of scheduling order deadlines, even when many trial judges would have been more lenient.

​Even though the plaintiff had significantly delayed in providing answers to interrogatories, the defense failed to show that it had taken every possible action to comply with the scheduling order, given the information that it had.

Two additional aspects also can be traps in situations like this. The plaintiff specifically agreed to every request made by the defense. This opinion, however, is a reminder that trial judges are not only not bound by such agreements but often can act against them.

Lack of Prejudice Not Enough

The most challenging aspect of this denial of scheduling order amendment was that, when the trial court scheduled the trial, it was 10 months away. That time was enough for the parties to complete discovery without delaying the case. There also was no apparent prejudice to the plaintiff from the defense’s previous failures to comply with the scheduling order.

In many other cases, trial judges would have allowed the amendment to the scheduling order because it would not have delayed the case. This opinion, however, is a stark reminder that a party cannot rely on an extension in such circumstances.

The bottom line for this denial of scheduling order amendment is that a party that fails to show substantial compliance with a scheduling order is not in a position to reverse a trial judge who declines an extension.

You can read other blog posts on cases involving Discovery and Procedure.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

​

Factual Background

The plaintiff in this case brought a medical malpractice claim in the Circuit Court for Prince George’s County. The case was against a doctor and also her practice group. The plaintiff alleged that failure to monitor a condition in her eye led to vision loss in that eye. (Op. at 1).

During discovery, the plaintiff failed to respond to interrogatories and a request for production of documents. Two months passed. In addition, defense counsel inquired three times over the course of two months about the discovery responses and the deposition of the plaintiff, and did not receive a response. (Id. at 2).

The defendants then noted the plaintiff’s deposition and filed a motion to compel discovery. The plaintiff did not respond. (Id.).

Upon granting the motion to compel, the court issued a stern warning to the plaintiff about the potential consequences of non-compliance. However, the plaintiff claimed she did not receive the court’s order, which the court inadvertently did not docket. (Id. at 2-3).

The defense filed another motion for sanctions, seeking dismissal. (Id. at 3). Defense counsel appeared for the deposition of the plaintiff, but the plaintiff did not appear. The defense counsel then supplemented their motion for sanctions with this fact. (Id. at 4). The plaintiff provided answers to interrogatories after the court’s second compliance deadline. (Id. at 5). 

Trial Court’s Ruling on Dismissal Sanction in Medical Malpractice Case

The trial court granted the defense’s motion to dismiss. It noted the numerous unanswered motions to compel. It also stated that the plaintiff’s counsel failed to comply with both court deadlines and that the court had warned the plaintiff that she could face sanctions and penalties. (Id. at 6).

The court also noted the plaintiff’s lack of communication with her counsel, which was a significant factor in the case. The court emphasized that the plaintiff had a duty to stay in touch with her counsel, which she failed to do for many months. (Id. at 7).

The circuit court applied the five factors for assessing dismissal as a discovery sanction and dismissed the case. The plaintiff appealed. (Id. at 7-9).

Court of Special Appeals

Maryland Rule 2-433(a)(3) gives trial courts broad discretion to impose sanctions for discovery violations. The available sanctions range from striking out pleadings to dismissal. The decision to invoke the ultimate sanction is within the trial court’s discretion, underscoring the court’s authority and responsibility to maintain the integrity of legal proceedings.

The CSA said it does not look at each incident in isolation, but rather at the entire history and context of the case in reviewing the trial court’s decision to dismiss. (Id. at 13). The five factors often overlap and do not lend themselves to a compartmental analysis. (Id. at 12).

Factors

1. Whether the disclosure violation was technical or substantial

The violation was not technical, but was substantial. Belated disclosures are relevant to the other parties’ ability to prepare their case. (Id. at 13).

2. The timing of the ultimate disclosure

The plaintiff failed to provide the discovery by the deadline in the court’s order. The plaintiff’s counsel demonstrated willful disregard throughout the case. The plaintiff provided responses to discovery requests more than 7 months after the defendants issued the requests. (Id. at 17-18).

3. The reason, if any, for the violation

The court found that the fault for the lack of discovery responses and communication lay with both the plaintiff and her lawyer. (Id. at 18-19).

4. The degree of prejudice to the parties respectively offering and opposing the evidence

The prejudice of the defense was great. Memories of witnesses fade, and the ability to locate witnesses becomes an issue. As of the date that the trial court considered the motion for dismissal as a sanction, more than six years had passed since the events at issue. This time period included 2 1/2 years in litigation, due to the plaintiff’s delay in serving the defense. (Id. at 19-20).

5. Whether a postponement might cure any resulting prejudice and, if so, the overall desirability of a continuance

A continuance would not cure prejudice. The plaintiff lawyer’s track record gave the court no reason to think he would suddenly start cooperating. (Id. at 21). Accordingly, the CSA affirmed the judgment. (Id. at 22).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Dismissal Sanction

One of a lawyer’s nightmares is when a client fails to cooperate, or even ‘disappears’ for a time. From the outset of litigation, the court scheduling order sets deadlines for the case. Without the client’s cooperation, a lawyer can fall behind in advancing the case according to the court’s deadlines. This lack of collaboration can include the inability to respond to discovery from the opposing party. Client-lawyer cooperation is essential in such situations.

When this happens, the lawyer mustn’t also disappear. However, that is precisely what happened here. Even if the lawyer cannot advance the litigation without the client’s assistance, the lawyer can inform the opposing party and the court of the situation and his efforts to obtain cooperation.

When the lawyer also disappears, however, there comes a point in the case when it is too late to reverse course. The defense seeks dismissal, and the court considers the track record of wasted time in the case and decides that enough is enough. The impact of delays and nonresponsiveness on case outcomes underscores the urgency and importance of timely action in legal proceedings.

The irony is that this is when the client and the lawyer start responding, but it is too late. If the plaintiff and her lawyer had put in this effort earlier in the case, there would be no dismissal.

You can read other Blog post on dismissal sanction: Scheduling Order Sanctions: Little v. Hyde, and additional posts in the category of Discovery.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

A former client brought a pro se complaint against his former lawyer in the Circuit Court for Baltimore City, alleging negligence for failing to renew judgments. In discovery, the defendants propounded a request for admissions under Maryland Rule 2-424. The requests included ones that defeated the plaintiff’s claim, if admitted. (Op. at 3).

The Rule also emphasizes the significance of timely responses, stating that each matter of which an admission is requested shall be deemed admitted unless, within 30 days after service of the request . . . , the party to whom the request is directed serves a response signed by the party or the party’s attorney. The Rule adds that any matter admitted under this Rule is conclusively established unless the court, on motion, permits withdrawal or amendment. The court may permit withdraw or amendment of admissions if the court finds that it would assist the presentation of the merits of the action, and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits. (Id.).

Late Response

The plaintiff responded to the requests 22 days late and denied the ones that would have defeated his claim. The defendant then filed a motion for summary judgment, arguing that the requests were admitted due to the plaintiff’s failure to respond timely. The court held a hearing on the motion, then postponed it so that the plaintiff could obtain counsel. Before the hearing, the plaintiff’s lawyer filed an answer to the motion for summary judgment, and five days before the rescheduled hearing, he filed a memorandum in support. In the memorandum, the plaintiff argued that the court should excuse his failure to respond on time because he was pro se, living in Florida, and had responded 22 days after the deadline. He noted that Rule 2-424 allows for the withdraw of admissions and requested that the court deny the summary judgment. (Id. at 4-5).

Hearing

At the hearing, the court stated that it had not received the plaintiff’s memorandum. The plaintiff did not submit another copy or state that he wanted to withdraw or amend the admissions. (Id. at 5).

The defendants contended that the plaintiff had never requested that the admissions be withdrawn or amended. The defendants also argued that if the court were to allow withdrawal, it would prejudice them because they were a month from an extended discovery date. In response, the plaintiff did not indicate that he had sought to have the admissions withdrawn. He argued that the Rule does not intend a request for admissions to create a judgment against an unrepresented plaintiff based on a technicality. (Id. at 6).

The court allowed the admissions to stand and ruled that the defendants were entitled to summary judgment. (Id. at 6-7). After the court denied the plaintiff’s motion to alter or amend, the plaintiff appealed. (Id. at 7-8).

Appellate Court on Withdraw of Admissions

The Appellate Court first noted that the Rules limited the appeal to the issues raised in the motion to alter or amend. (Id. at 9). The court also emphasized that Rule 2-424 states that the trial court “may” permit the withdrawal or amendment of admissions. This language affords the trial court a significant amount of discretion in making the determination. (Id. at 11-12).

The court stated that the plaintiff was required to diligently and timely seek any relief from the court related to the admissions. The plaintiff filed its memorandum four months after the response to admissions was due and two months after the defendant filed his motion for summary judgment. (Id. at 12-13). The Appellate Court concluded that the trial court did not abuse its discretion and affirmed the decision. (Id. at 15).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Withdraw of Admissions

Many factors can influence courts’ decisions, including ones the court does not expressly discuss. In this case, the Appellate Court focused on the plaintiffs’ delay in seeking to withdraw the admissions.

The plaintiff made decisions that contributed to the loss in this case. First, the plaintiff appears to be a sophisticated investor, but chose to bring this case initially without a lawyer. The savvy defense lawyers propounded requests for admission on the plaintiff’s burdens, knowing that they are often a trap for unrepresented parties. It worked perfectly, and the plaintiffs’ failure to respond to the admissions set the stage for the defense motion for summary judgment, which ultimately won the case.

At that point, however, the plaintiff still had a path to undo the damage. Unfortunately, the plaintiff’s lawyer’s appearance was not entered until almost 2 months after the defendant filed the motion for summary judgment.

Courts will often excuse a failure if the party attempts to remedy it as soon as possible. Here, the plaintiff delayed in trying to remedy the failure.

The plaintiff lost this case in the trial court. Given the broad discretion allowed to the trial court, the plaintiff had no realistic chance of winning this appeal.

Causation

In addition to withdraw of admissions, there was another potential problem for the plaintiff. The defense had argued in the alternative that the plaintiff was unable to prove the proximate cause of damages. The plaintiff would’ve had to prove that had the defendant renewed the judgments, the plaintiff would have successfully collected on them.

Suppose the plaintiff had not been able to collect on the judgments during the initial 12-year period. How would he prove that he would’ve been successful in collecting during a renewed period? The defense believed he could not, but the court did not reach that argument.

For additional posts, see the discovery category.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

The plaintiff filed a lawsuit in the Circuit Court for Prince George’s County, alleging injuries sustained in a head-on collision with a truck. (Op. at 1). The plaintiff visited the emergency room and then consulted a chiropractor three weeks later. (Id. at 2). The chiropractor treated the plaintiff for back and leg pain from the accident for 3 months, and medical bills totaled $7,424. (Id.).

In the lawsuit, the plaintiff did not seek reimbursement for medical bills. His claim was for non-economic damages for past and future pain and suffering. The defendant admitted to being responsible for the accident. The trial aimed to determine whether the accident had caused the plaintiff’s injuries and to assess the amount of damages that the plaintiff was entitled to. (Id.).

The plaintiff’s case included the testimony of family and co-worker witnesses, who attested to the significant back pain the plaintiff has endured since the accident. The plaintiff also called an orthopedic surgeon, whose testimony confirmed that the accident had caused a lower back injury with nerve damage, and the resulting pain would be life-long. (Id. at 3). 

The defense called a private investigator it had hired to conduct surveillance of the plaintiff. The investigator video-recorded the plaintiff at work and prepared a report. During testimony, the investigator referenced his report. The plaintiff objected because the defendant had not disclosed the report during the discovery process. The trial judge sustained the objection and excluded the testimony as a sanction for the discovery violation. (Id. at 4).

The jury returned a verdict in favor of the plaintiff for $500,000. The defendant appealed. (Id. at 1).

Appellate Court of Maryland on Disclosure of Impeachment Evidence

For the Appellate Court’s review, the defendant did not place the investigator’s report into the record and did not make a proffer to the trial court regarding the report’s contents. The Appellate Court assumed that the report constituted impeachment evidence. (Id. at 26).

Md. Rule 2-402(e) states: (1) Information Withheld. — A party who withholds information on the ground that it is privileged or subject to protection shall describe the nature of the documents, . . . not produced or disclosed in a manner that, without revealing the privileged or protected information, will enable other parties to assess the applicability of the privilege or protection. (Id. at 27).

The plaintiff propounded two interrogatories that requested disclosure of the existence of the investigator’s report. One sought to identify the people who gave written statements concerning the incident. Another sought to determine the documents that the defendant would rely on. (Id. at 27-28).

Even if the investigator’s report constituted the defense’s work product, the defendant was still required to describe the nature of the document. The trial court correctly concluded that the defendant failed to comply with the discovery rule.  (Id. at 29, 30). 

The trial court found that the defense’s failure to disclose the report made it ‘incredibly difficult’ for the plaintiff to cross-examine the investigator. The Appellate Court, in its review, found that the trial judge’s decision to preclude further testimony from the investigator was fair. This decision was not considered an abuse of discretion. (Id. at 32).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Disclosure of Impeachment Evidence

First, the defendant failed to prepare this issue for appellate review. The defendant should have marked the investigator’s report for identification and then included it in the record extract on appeal. The Appellate Court did not hold this failure against the defendant. Still, such oversights can weaken a case on appeal.

In this case, the defendant failed to comply with Rule 2-402(e). The investigator’s report was responsive to two of the plaintiff’s interrogatories, and the rule required the defendant to provide a description of it.

Moreover, the trial judge clearly understood the challenge that the plaintiff faced in cross-examining the investigator in front of the jury without knowing the contents of his report. As a result, the trial judge’s decision to exclude further testimony adequately protected the plaintiff from the situation that the defendant created.

Strategy Considerations

The defendant could have easily avoided the situation by describing the investigators’ report in discovery responses. It is not clear, however, whether that disclosure of the impeachment evidence would have changed the outcome in this case. Surveillance video of a plaintiff can be a powerful defense tool, and it can also significantly backfire. The strategic considerations in using such evidence are crucial. Suppose the video fails to present a significantly different picture of the plaintiff’s limitations. In that case, jurors may resent the defense for invading the plaintiff’s privacy and attempting to set a trap that failed.

Wise counsel will test the effect of the surveillance video. They show the plaintiff’s testimony to laypersons and then play the video to gauge their reaction. Suppose it produces anything less than a strong reaction that the plaintiff significantly overstated his limitations. In that case, the lawyer should consider not using it.

You can read other posts on discovery issues, and another post on Impeachment Evidence: Reese v. Baltimore.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

The plaintiff was the driver of a car and brought suit in the Circuit Court for Baltimore City in February of 2022 against the driver and owner of another car that collided with his car. In December, the plaintiff was held without bail on criminal charges in another case. In March of 2023, the circuit court issued the scheduling order for this case, and the plaintiff was convicted and later received a 10-year sentence. (Op. at 2).

In June, the defense moved for scheduling order sanctions for the plaintiff’s failure to respond to discovery requests sent in November 2022. He also had failed to designate expert witnesses by the April 2023 deadline. The plaintiff further failed to oppose the motion, and the court granted it, entering sanctions that prevented the plaintiff from putting on liability, damages, and expert evidence. (Id. at 3).

The defense filed a motion for summary judgment. The plaintiff opposed it and filed motions to vacate the sanctions and amend the scheduling order. The plaintiff said his incarceration had prevented him from participating in discovery, but he had resumed communications with his lawyer. (Id.).

The circuit court denied the plaintiff’s motions and granted the defense motion for summary judgment. The court noted there was no indication the plaintiff’s lawyer had taken steps to find and communicate with the plaintiff, and the lawyer had failed to respond to the sanctions motion. The court observed that the trial date had come, and “nothing has occurred.” The plaintiff appealed.  (Id. at 4-5).

Appellate Court of Maryland on Scheduling Order Sanctions

The Appellate Court stated that the plaintiff’s failure to respond to the discovery and sanctions motion showed that he had neither substantially complied with the scheduling order nor demonstrated good cause for his failure. The trial court could conclude that there was bad faith or willful disregard of the scheduling order. Accordingly, the Appellate Court concluded that the circuit court did not abuse its discretion in imposing the sanctions. (Id. at 11).

The Appellate Court also found that the plaintiff’s violations of the scheduling order were substantive, not technical, and the plaintiff had failed to substantially comply with the scheduling order. (Id. at 14).

There was evidence supporting the circuit court’s conclusion that there was no good cause for the scheduling order violations and that the plaintiff’s incarceration did not excuse the ongoing violations. (Id.). In addition, there was potential for significant prejudice to the defense in delaying the litigation beyond the four years and three months that had already elapsed from the accident. (Id. at 15).

The plaintiff emphasized that he had designated experts and answered interrogatories the month before the summary judgment hearing and that the discovery was substantially complete. The Appellate Court, however, found that the plaintiff’s disregard for the scheduling order was persistent and egregious. Therefore, the court concluded that a postponement would not cure the prejudice. Based on the above factors, the Appellate Court concluded that the circuit court did not abuse its discretion in denying the plaintiff’s motions to modify the scheduling order and vacate the sanctions. (Id. at 15-16). 

Summary Judgment

Last, the plaintiff argued that summary judgment was improper because the defense did not submit a sworn statement supporting its motion, stating facts that entitled it to summary judgment. (Id. at 16-17). The Appellate Court, however, observed that an affidavit is not necessary when the movant has otherwise demonstrated no genuine dispute of material fact. The circuit court could conclude from its sanctions order that the plaintiff could not establish his claim. (Id. at 18). The summary judgment was proper. (Id. at 19).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Scheduling Order Sanctions

There are numerous appellate opinions on sanctions for failing to comply with scheduling orders, each varying in severity. This case, however, involves the most severe form of sanction – the equivalent of a dismissal of the case. The gravity of this outcome cannot be overstated.

Managing a busy plaintiff’s personal injury practice is an incredibly challenging task. The complexities involved in complying with numerous scheduling order requirements and deadlines in various cases can be overwhelming.

One of the most significant challenges in managing a plaintiff’s personal injury practice is securing the client’s cooperation, which is crucial for meeting scheduling order requirements. This often involves obtaining information, signatures, and ensuring the client’s attendance at appointments, including doctor’s visits and court appearances.

Client cooperation can vary significantly. Some clients are very good at responding to what the lawyer needs. Others vary in their reliability. Still, others can cause significant problems due to their lack of communication and cooperation with the lawyer.

This case presented a tough challenge. A plaintiff’s incarceration significantly limits their ability to communicate and participate in a lawsuit. The lawyer can overcome this challenge, but it is not easy.

Communication

Effective communication with the court is vital to prevent unfavorable outcomes. Failing to respond to a scheduling order sanctions motion can significantly reduce the chances of overturning the sanctions. While courts may not always be open to extending scheduling order deadlines, if a lawyer promptly communicates the challenges they face and demonstrates a good faith effort to address them, many courts will be understanding and accommodating.

The lack of communication and activity here exceeded what the court would tolerate.

Not every lawyer will undertake the challenges of representing an incarcerated plaintiff. In this case, the incarceration occurred after the lawyer filed the case. The plaintiff’s lawyer had a choice at that point. One option included withdrawing from the case. When the plaintiff’s lawyer stayed with the case, they chose to undertake the communication and efforts needed to deal with those special circumstances. If at any point the client failed to provide what the lawyer needed, withdrawal could be pursued.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

In part 1, I examined the first holding that the Appellate Court discussed involving reporter immunity. The Appellate Court held that the circuit court properly denied summary judgment on the issue of lack of good faith in reporting the abuse or neglect of a child. Future Blog posts will discuss additional holdings from this case.

Factual Background to the Late Motion to Compel

Ms. Monroe’s two children, ages 5 and 6, had been taking several over-the-counter (OTC) cough medications for a few days for flu symptoms. She then called 911 to report that her kids were unconscious and barely breathing. 

The ambulance took them to UMMC, where they did a battery of tests. VITROS rapid urine tests were positive for opiates in both children. Afterward, a blood test did not reveal any opiate presence. UMMC reported the urine tests to the Department of Social Services (DSS) and treated the kids for acute respiratory failure. They were in comas and on ventilators for several days.

Ms. Monroe lost custody of her kids for four months while DSS conducted an investigation concerning the kids’ safety. The kids made a full medical recovery. Tragically, one of the kids died by suicide three years later.

Lawsuit

Ms. Monroe brought suit in the Circuit Court for Baltimore City for her family. They alleged that UMMC’s reporting to DSS was in bad faith. The plaintiffs alleged that the UMMC toxicologist falsely stated that the OTC medication could not cause Dextromethorphan (DXM) levels that resulted in a false positive on the urine test, that UMMC ignored Ms. Monroe’s explanation concerning the medicines taken, and that UMMC was motivated by racial and economic bias.

Both sides retained expert toxicologists, and the late motion to compel arose as part of discovery disputes over disclosing the experts’ opinions.

Late Motion to Compel

The plaintiffs’ motions to compel discovery specified a notebook of a defense toxicologist’s notes and calculations (Op. at 92). The defense responded that the plaintiffs questioned the defense doctors over two days in a July hearing, received the folder in September, and then chose not to depose them before questioning them again at the October hearing. The defense argued that the plaintiffs did not identify nondisclosure or prejudice. (Id. at 93). 

Trial courts “are vested with a reasonable, sound discretion in applying [the discovery rules], which discretion will not be disturbed in the absence of a showing of its abuse.” Falik v. Hornage, 413 Md. 163, 182 (2010).

On January 12, the plaintiffs filed the three late motions to compel. They included a certificate of good faith under Rule 2-431 listing the emails they sent to the defense requesting discovery. The defendants opposed the motions, saying they had produced everything and that the plaintiffs had not made good faith attempts to discuss resolution. (Op. at 96). 

Courts’ Opinions

The circuit court denied the plaintiff’s motions without a hearing. (Id. at 95). The circuit court observed that the plaintiffs filed their motions three months after the alleged discovery failures. As a result, the circuit court found that the plaintiffs had failed to file the motions with reasonable promptness under Rule 2-432(d). The circuit court also noted the pettifogging nature of the parties’ papers, and the court was not convinced that the plaintiffs had made a good faith attempt to resolve the issues with the defense. The Appellate Court found no abuse of discretion. (Id. at 97).

The Appellate Court then addressed the circuit court denying the plaintiffs’ motions to limit the defense experts. The plaintiffs sought to exclude formulas to calculate DXM levels as trial by ambush. The defendants argued that the formulas supplemented what their experts had gleaned from literature in the plaintiff’s possession and did not change the experts’ opinions. The defendants also said the plaintiffs had not deposed the defense experts (Id. at 98).

The Appellate Court found no abuse of discretion. The defendants’ intention to use a formula to calculate the amount of DXM was hardly surprising. The plaintiffs had a toxicologist with access to the same data and research as the defense experts and the plaintiff had an opportunity to depose the defense experts (Id.).

Commentary by the Baltimore Medical Malpractice Lawyer on Late Motion to Compel

Several big-picture views help explain the outcome of this issue. If there is someone who dislikes discovery disputes more than a trial judge, it could be an appellate judge. The Appellate Court issued a 130-page opinion in this case, ultimately concluding that the circuit court correctly excluded the plaintiffs’ toxicology expert after a Daubert hearing. Nothing in the opinion suggests that any nondisclosure hampered the plaintiffs’ participation in the hearing. The late motion to compel does not seem to be a critical part of the trial court proceedings.

Add to this the deferential abuse of discretion standard. Add further the circuit court’s reference to the discovery papers as pettifogging and questioning whether good faith attempts to resolve the disputes had occurred. It is easier to see why the Appellate Court did not disturb the circuit court’s rulings.

The courts also relied on the plaintiffs’ failure to depose the defense experts. Parties are entitled to make the other side answer interrogatories concerning their experts and “to state the substance of the findings and the opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Rule 2-402(g)(1)(A) (emphasis added). Here is where the depositions come in. If a party seeks more details about an expert’s opinions than the interrogatory answers provided in summary form, depositions are the answer. The Monroe decision shows that courts will not be sympathetic to complaints of lack of details provided if the complaining party chooses not to do a deposition.

Additional Observations

There are a couple of additional notable components of the Monroe late motion to compel decision. First, the circuit court denied the motions because the plaintiffs filed them late. Rule 2-432(d) provides that a party shall file a motion to compel discovery with “reasonable promptness.” This requirement is a vague standard, and courts rarely invoke it. Here, it is clear that the circuit court felt that the plaintiffs had unnecessarily delayed filing their motions. 

Second, the court’s answer to the plaintiffs’ request to exclude defense experts for not disclosing formulas was that it was not surprising that they would use formulas. The plaintiffs’ expert had access to the same data and research. I do understand this response. The point is different from what the experts can access but rather how they use that information to form their opinions. The plaintiffs can have the first part and still be entitled to receive the second part.

Practice Tips from the Baltimore Medical Malpractice Lawyer

Here are some practice tips to obtain the discovery you need, even if a motion to compel is required:

Serve Interrogatories and Document Requests Early

Early service allows time to follow up with additional requests and then to move to compel for any failures to provide discovery.

Seek Tailored Information

Many lawyers serve massively overbroad discovery requests and then narrow them once the other side objects. One unfortunate aspect of this strategy is that when you prepare a motion to compel, you must list the original request. Hence, the judge starts by reading your unnecessarily broad request. It is better to seek the actual information you need.

For example, some lawyers will serve a document request for all documents related to every time the defendant has been previously sued for medical malpractice. Sometimes, they do this for hospitals—imagine the amount of documents! Every medical record, pleading, and deposition from every lawsuit would be massively overbroad, even for individual doctor defendants.

Instead, consider an interrogatory that requests the doctor to identify every time a lawsuit has been filed based on his professional conduct (this would include any time the plaintiff did not name the doctor may not personally in the lawsuit or dropped them from it). The plaintiffs’ lawyer can then take this information and determine whether any part of the files is relevant to the present case. For instance, in a case where the doctor performed the same procedure as in your case, you can seek the doctor’s deposition to see what he testified to in the other case.

Promptly Pursue Failures to Provide Discovery – Avoid Late Motion to Compel

Be sure to seek to resolve the discovery disputes promptly with the other side so that you can file any motion to compel with reasonable promptness under Rule 2-432(d). Also, document the resolution attempts in a certificate under Rule 2-431.

In sum, it pays to be aware of the circuit court judge’s perspective when examining your motion. Will your timely requests appear reasonable, and have you promptly tried to resolve the dispute in good faith? If so, you should be in good standing even if the trial judge is not a fan of discovery disputes.

You can read other Blog posts on the topic of discovery, including on a discovery violation.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Circuit Court Case

The plaintiff was injured when he slipped and fell on ice at work. He then filed suit in the Circuit Court for Baltimore County against the owner of the premises and the maintenance company responsible for snow removal. The case subsequently went to a jury trial. The circuit court then granted the defense’s motion for judgment at the close of evidence based on assumption of risk. (Op. at 1-2).

The plaintiff emphasized a meeting the day before the fall. He asserted that he was told that if he didn’t report for work the next day, he would be written up and not eligible for overtime. Three such instances would result in the termination of his employment. (Id. at 3-4). This evidence went to the voluntariness of the plaintiff’s assuming the risk of walking across the ice. (Id. at 22).

Appeal

On appeal, the plaintiff claimed that the circuit court’s imposition of a discovery sanction was an abuse of discretion because there was no discovery violation. The plaintiff asserted that no defense discovery requested the plaintiff to identify witnesses at trial. (Id. at 32).

The defendants had served the plaintiff with standard interrogatories asking for the identity of all persons who knew of the occurrence. One interrogatory requested the plaintiff to “identify all persons not otherwise mentioned in your answers to these interrogatories who have personal knowledge of facts material to the occurrence.” The plaintiff did not identify the witness until the Monday evening before the Thursday trial and stated that he planned to call the witness at trial. (Id.)

At the beginning of the trial, the defense made an oral motion in limine to exclude the witness. The witness was one of the plaintiff’s co-workers. The plaintiff’s counsel said he first spoke to the witness on the Friday before trial and disclosed him a couple of nights before trial. The plaintiff argued that the witness did not know about the fall. Instead, he had information about a meeting the day before at which the company discussed the upcoming storm and snow removal. (Id. at 33-34).

The circuit court determined that the defense’s interrogatory covered the witness. Discovery had closed in June 2020, and the plaintiff did not disclose the witness until September 2022, several days before trial. As a result, the circuit court excluded the witness from testifying. (Id. at 34).

Appellate Court Analysis on Discovery Violation

There is a two-step process to review a circuit court’s imposition of sanctions. First, reviewing a discovery violation is a question of law that the Appellate Court reviews de novo. Cole v. State, 378 Md. 42, 56 (2003). Suppose the Appellate Court finds a discovery violation. In that case, it reviews the circuit court’s decision to impose a sanction for an abuse of discretion. Kadish v. Kadish, 254 Md. App. 467, 492 (2022). The plaintiff challenged solely the first step; he asserted that the sanction was improper because there was no discovery violation. Because the plaintiff limited his claim to that issue in his brief, the Appellate Court similarly limited its opinion. (Id.).

The plaintiff argued that the interrogatory’s use of “occurrence” referred to the fall. The plaintiff asserted that he did not have to disclose the witness because the witness did not know of the fall. Instead, the witness’s testimony would relate to the meeting the day before that discussed the upcoming storm and snow removal. (Id. at 35).

The Appellate Court rejected the plaintiff’s narrow construction of occurrence. The plaintiff believed that the witness’s knowledge was relevant to the claim. The circuit court properly concluded that the plaintiff’s failure to identify the witness until a couple of days prior to trial was a discovery violation. (Id.).

Commentary by the Baltimore Medical Malpractice Lawyer on Discovery Violation

The Appellate Court’s analysis of the discovery violation was straightforward and sound. The defense’s interrogatories were standard and broadly called for the identity of everyone having relevant knowledge. The plaintiff’s attempt to limit the definition of occurrence was destined to fail. 

It is unclear why the plaintiff did not assert that the sanction was improper. However, it would have been a difficult argument to prevail on. The plaintiff’s disclosure to the witness a couple of days before trial was a surprise and unfairly prejudiced the defense. The court opinion lists no reason for the plaintiff’s delay in disclosing the witness, and the defense did not have a reasonable opportunity to depose the witness.

Plaintiffs should obviously aim to disclose all witnesses during discovery. If they fail to do so, the Bland opinion shows that an attempt to excuse the failure by narrowly constructing a broad interrogatory will fail.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.