Impeachment Disclosure: Metro v. Lopez 2
The Baltimore Medical Malpractice Lawyer Blog delves into Maryland appellate opinions in personal injury cases, shedding light on issues that also pertain to medical malpractice cases. This post focuses on the unreported opinion in Metro Investigation & Recovery Solutions, Inc. v. Pineda-Lopez, No. 546, dated June 2, 2025. Part 1 of the analysis explored the issue of revising an order that previously denied a motion. In part 2, we delve into the failure of a party to provide disclosure of impeachment evidence in discovery.
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.