In Maryland medical malpractice cases, the circuit court issues a scheduling order with various deadlines for the case. These deadlines include dates for expert designation. Also provided is a discovery period in which the parties can obtain information about the substance of the opponent’s expected expert witness testimony.
When a party acts outside these deadlines, the opponent can seek relief from the court. Failure to meet the expert designation deadline is the situation in an unreported opinion from the Appellate Court of Maryland in Hemstreet v. Caldwell (February 10, 2023). Although this case involved a car accident, the procedure principles apply to Maryland medical malpractice cases.
Trial Court Strikes Expert Designation
The circuit court had issued a scheduling order. On the day that was the deadline, the plaintiffs designated expert witnesses, including an accident reconstructionist. Two weeks after the deadline, the plaintiffs sent an amended identification of experts. They listed an additional accident reconstructionist, Joseph Hancock, to replace the first one, unavailable for trial. (Op. at 2, 13-14).
Four weeks later, after the close of discovery and less than two months before trial, the plaintiffs provided Hancock’s report, but it did not include all of his opinions. (Id. at 8). The defense timely moved to strike the expert designation of Hancock and his report, but the circuit court did not rule on it until trial. The circuit court granted the motion. (Id at 2.)
After a two-day trial, the jury determined that both vehicle operators were negligent and returned a verdict for the defense under contributory negligence. The plaintiffs appealed, contending that the circuit court erred in striking their expert. (Id. at 3).
Appellate Court Opinion
The defense filed a motion to strike Hancock, and the plaintiffs opposed it. The scheduling order provided that the court would hear motions within 30 days, and the moving party was to follow up with the court on the status of the motion. However, when the motion was ripe, there were less than 30 days until trial. (Id. at 5-6, 11).
The decision to strike a witness for failure to comply with the scheduling order is at the trial court’s discretion. (Id. at 18).
The plaintiffs’ expert designation of Hancock 14 days after the deadline was without good cause or explanation, without conferring with defense counsel or seeking permission from the court. The plaintiffs’ providing the report after the close of discovery deprived the defense of a deposition of Hancock. (Id. at 24-25). The Plaintiffs provided Hancock’s report just 48 days before trial. (Id. at 29).
The Appellate Court found no good cause for the plaintiffs’ late expert designation. There was no substantial compliance with the scheduling order or even a good-faith effort toward compliance. Hancock wasn’t necessary for the plaintiffs to get their claim to the jury. If the trial court had allowed Hancock to testify, that would have prejudiced the defense because it did not have opposing expert testimony. Under these circumstances, the circuit court was not arbitrary or capricious, without the letter or beyond the reason of law. (Id. at 29-30).
The circuit court also did not err in holding the hearing during the trial. The plaintiffs were not entitled to a hearing because the ruling did not dispose of their claim. Rule 2-311(f).
Commentary: Avoiding Striking of Expert Designation
Many lawyers routinely act past the deadlines the trial court established in the scheduling order. In many instances, they can get away with it. However, the Hemstreet case is an example where the plaintiffs failed.
What Should the Plaintiff’s Lawyer Do?
First, the need to replace an expert happens from time to time. An expert is willing to engage, but there is a conflict.
The plaintiff’s lawyer should approach the defense, explain the situation, and ask for consent to make the substitute expert designation. Most experienced lawyers recognize that the same problem could happen to them and are often willing to work together.
A couple of things can make this cooperation more likely to occur. First, inform the defense of the issue as soon as it arises. Delay can impair the defense’s ability to respond and give them a reason not to consent. Second, offer the defense any adjustment to the scheduling order so their opportunity to respond is not impaired.
Notably, many scheduling orders say agreements between counsel to alter deadlines are not binding on the court. As a result, it is also essential to seek permission from the court as soon as the issue arises.
When a plaintiff acts early in these situations, apprises the defense and court, and seeks appropriate relief, the court often accommodates the plaintiff. When the court declines, it is usually because the plaintiff unilaterally ignored deadlines and did not seek consent from the defense or permission from the court.
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