Discovery Violation: Bland v. Emcor

Kopec Law Firm

The Baltimore Medical Malpractice Lawyer Blog often discusses cases from other personal injury areas that involve issues that also come up in medical malpractice cases. On October 20, 2023, the Appellate Court of Maryland issued an unreported opinion in Bland v. Emcor Facilities Services, Inc., et al., No. 1444. It was a slip-and-fall case. I will examine the circuit court’s finding of a discovery violation. As a result, the circuit court excluded one of the plaintiff’s fact witnesses from testifying at trial

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).


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).

discovery violation
Discovery Violation

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.

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