Reopening Discovery: DeMizio v. JHH 1
The Baltimore Medical Malpractice Lawyer Blog discusses an unreported opinion filed on May 8, 2026. The Appellate Court of Maryland ruled on procedural and evidentiary issues in the context of a medical malpractice case. The case was Deidre DeMizio, et al. v. Johns Hopkins Health System Corp., et al. (No. 2412, September Term, 2023). It arose from an underlying medical malpractice action filed in the Circuit Court for Montgomery County. This followed the undiagnosed cardiac amyloidosis death of a dentist. Following a multiple week trial where the jury returned a defense verdict, the plaintiffs appealed on several grounds. In this multiple part series, I dissect the appellate court’s rulings to glean practical insights for Maryland medical malpractice practitioners. Part One focuses on whether the trial court abused its discretion. The decision at issue denied the plaintiffs’ motion for reopening discovery in this medical malpractice case.
Factual Background
The underlying medical malpractice action was brought by the plaintiffs in May 2020. The lawsuit alleged that multiple medical defendants failed to appropriately diagnose and treat the decedent’s underlying cardiac amyloidosis. This was during a relevant treatment period from February 2015 until his sudden death in December 2017.
From its very start, the case faced procedural friction and experienced structural delays over several years. A substantial portion of this stagnation was directly attributable to successive legal counsels for the plaintiffs entering appearances and subsequently withdrawing from active representation. Specifically, the plaintiffs’ initial filing counsel withdrew in December 2020. This resulted in the court to pushing the original July 2021 trial date back to March 2022.
Replacement counsel stepped in, but subsequent complications and scheduling conflicts forced further adjustments, delaying the trial to May 2023. In early 2023, the plaintiffs’ legal team suffered consecutive departures. One co-counsel withdrew in February, and lead counsel withdrew in April due to health complications. Consequently, the trial date was postponed yet again, resetting the operational schedule to January 2024.
Amidst these compounding delays, the operative discovery deadlines had long since crystallized under the court’s scheduling order. The circuit court originally set discovery to close on January 27, 2022. There were minor disputes regarding document production. The court then permitted discovery to remain partially open for a highly limited purpose. It definitively established a final, modified discovery deadline of May 31, 2022.
Plaintiffs’ Motion for Reopening of Discovery
More than a full year after this final discovery deadline closed, the plaintiffs again secured their new legal representation, with incoming counsel entering an appearance in July 2023. On the exact date of his appearance—fourteen months after the absolute expiration of discovery and four months before the rescheduled trial date—the plaintiffs’ new attorney filed a motion requesting the court to reopen discovery. The explicit purpose of the motion was to depose two of the defendants’ expert witnesses, whose identities and specialized expert reports had already been provided during the original, active discovery period.
Parties’ Arguments on Reopening Discovery & Medical Malpractice
In seeking leave to reopen the discovery window, the plaintiffs argued that the requested modification was narrow in scope and would only require the discovery window to be active for a very brief period. They emphasized that at the time of the motion in July 2023, the scheduled trial date was still several months away, meaning that it could easily accommodate the expert depositions without requiring an additional postponement of the trial itself.
New counsel further maintained that prior legal representation had committed a disservice to the plaintiffs by failing to execute these depositions while discovery was open, effectively arguing that the clients should not be penalized for the strategic omissions or failures of their previous attorneys. Finally, the plaintiffs claimed prejudice, asserting that entering a medical malpractice trial without having conducted pretrial depositions allowed the defense experts to unfairly adapt, surprise, and shape their live trial testimony to the direct detriment of the plaintiffs’ case.
Defense Arguments
Conversely, the defendants argued that there was absolutely no good-faith basis to disturb the long-standing scheduling order by reopening discovery in this medical malpractice case. They pointed to the extensive administrative history of the case, highlighting that the numerous prior delays were entirely attributable to the plaintiffs’ compounding counsel turnovers and internal management. The defendants asserted that the trial court was legally and equitably required to protect the integrity of the judicial schedule, ensure finality, and shield the defendants from ongoing litigation costs.
They emphasized that the plaintiffs had been provided an ample, fair, and multi-year opportunity to depose the defense experts during the active discovery period, and that a sudden shift in trial strategy by incoming counsel did not constitute an extraordinary circumstance or legal justification. Reopening discovery, they warned, carried an unacceptable risk of throwing other pre-trial deadlines off track, disrupting expert schedules, and inevitably precipitating yet another trial delay.
Court Ruling on Reopening Discovery & Medical Malpractice
The circuit court denied the plaintiffs’ motion to reopen discovery, expressing concern regarding the compounding delays and the danger of throwing the remaining trial deadlines off track. On appeal, the appellate court reviewed this denial under the highly deferential “abuse of discretion” standard. The court emphasized that the control of a trial calendar and the modification of a scheduling order are matters strictly committed to the sound judgment and discretion of the trial court.
To determine whether the trial court acted within its lawful bounds, the appellate court applied the framework established in Maryland jurisprudence, which dictates that a party seeking to modify a scheduling order past its deadline must demonstrate both substantial compliance and good cause.
Analysis
First, analyzing substantial compliance, the appellate court found that the plaintiffs’ delay was completely divorced from a minor or “technical” violation. The motion was brought more than fourteen months after the formal close of discovery. Thus, it represented a total failure to meet the scheduling order’s structural terms, precluding any finding of substantial compliance.
Second, evaluating good cause, the court ruled that a tactical change in trial strategy or the personal assessment by incoming counsel that prior counsel had failed the client does not constitute a legally sufficient justification for noncompliance. The court observed that the defendants’ experts had already submitted highly detailed written expert reports during the active discovery window. Therefore, the plaintiffs were not operating completely in the dark or facing a dynamic of trial-by-ambush.
The Appellate Court balanced the absence of a valid reason for the fourteen-month delay against the prejudice of delaying an already heavily derailed case. The court held that the trial judge acted with reference to guiding legal principles. The Appellate Court found that the ruling was firmly supported by logic and the facts on record. It concluded that the trial court did not commit an abuse of discretion.
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Reopening Discovery & Medical Malpractice
The abuse of discretion standard is very deferential. The trial judge could have decided this issue either way and it likely would not have been reversed on appeal.
Some medical malpractice lawyers do not take the depositions of the opponents’ expert witnesses for strategic reasons. The deposition can give the expert the opportunity to prepare and a preview of questions the lawyer will ask at trial. In most instances medical malpractice lawyers choose to conduct the depositions. However, the argument that the earlier lawyer’s failure to depose the experts had resulted in prejudice was likely to face an uphill battle. Combined with detailed expert witness reports having been provided to the plaintiffs, these factors provided grounds that the trial judge could rule against reopening discovery.
The plaintiff’s attempt to reopen discovery was not frivolous. The trial was months away. There was time to conduct the depositions in a way that would not further delay the case or cause extreme prejudice to the defense. Some judges may have allowed such a request. One of the reasons that the request was not successful here was the multiple prior lengthy delays in the case.
Practical Considerations
A replacement lawyer joining a case has to be realistic. The court may not allow expert depositions in a circumstance like this. Filing the motion to reopen discovery is a fine way to proceed. As discussed above, it could have gone either way.
However, there is a more concerning situation here. It happens whenever a lawyer withdrawals from a case. There has to be a concern that a major problem has occurred with respect to the ability to win. That could be a problem with evidence coming out that is harmful to your claim. It could also be damage to the relationship between attorney and client.
We don’t know whether either of those situations were present here. However, it is notable that multiple rounds of prior counsel withdrew from the case (including experienced medical malpractice lawyers). Then the plaintiffs lost the case of trial.
It appears that the plaintiffs represented themselves on appeal.
Stay tuned for Part Two of this series. I will analyze the trial court’s exclusion of the plaintiffs’ expert cardiology testimony. It regarded off-label drug availability under the Daubert-Rochkind standard.
You can read other Blog posts on cases involving Discovery issues.
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.