Expert Designation: Hemstreet v. Caldwell

Kopec Law Firm

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.

Mark Kopec is a top-rated Maryland medical malpractice lawyer. You can contact him at 800-604-0704 for a free consultation. Thank you for reading the Maryland Medical Malpractice Lawyer Blog.

What Our Clients Say About Us

At the Kopec Law Firm, we are grateful that satisfied clients express their appreciation!

Mark is a knowledgeable and empathetic lawyer who speaks directly and concisely to evaluate your problem. He doesn't use attorney jargon that confuses people, rather he talks clearly. Although he couldn't help me with my situation, the consultation I had was productive because he answered my questions and gave me some clarity.

Shahnaz in Ellicott City

Dear Mark, I just wanted to express my gratitude for your dedication to my case. As you know, it has been a long and upsetting process for me, which would have been a great deal longer had it not been for the hours you put in helping me with this emotional roller coaster. Thank you again.

Shannon T. in Anne Arundel County

Dear Mark, thank you so much for your help and kindness. You provided the guidance and assistance we needed to obtain some understanding in loss of our child. We will never forget the professional and personal service provided. If anyone is in need of legal representation, I will certainly send them your way. God bless.

Kim C. in Cecil County

I wanted to say thank you for spending time with me regarding my questions about legal issues. Mere words cannot really express my gratitude. You seem to truly care about people.

Client in Baltimore City

Dear Mr. Mark, I’m truly grateful to have had you work on my son’s case. You were up front at all times and were on key every step of the way. I will always recommend your firm. Thank you so much for helping my son. P.S. Every time my son sees you on TV, he says “Mom, that’s my lawyer, Mr. Mark.” 🙂 Thank you again. You did an excellent job on the...

K.N. in Baltimore City

Dear Mark, we want to thank you for all the hard work and time your firm put in our case. You took the time to listen to us and research our case. You were honest and up front regarding the case. You responded to questions and concerns quickly. We would highly recommend your firm and services to anyone who is in need of legal representation. We...

Rebecca T. in Prince George’s County

Super Awesome team and staff! Worked with them for a case they handled for my grandchild about 10yrs ago! Would definitely use them again! I recommend them to everyone I know. Could never thank them enough! Very thorough and knowledgeable! Always kept us in the loop throughout the entire process!!!!

Letha C. in Prince George’s County

Mark explained everything in detail and brought clarity to all of my concerns.

Doris in Edgwater

I am very happy and thankful for your help. You responded very quickly. I am very happy to recommend you.

Linda in Chevy Chase
  1. 1 Free Consultation
  2. 2 Talk to a Lawyer
  3. 3 No Fee Unless You Win
Fill out the contact form or call us at 800-604-0704 to schedule your consultation.

Send Us a Message