Food Lion, Inc. v. McNeill

BELL, C.J. The issue in this case is whether the testimony of an expert may be excluded at trial on the basis of a disclosure, made during discovery in response to interrogatories, that has neither been claimed nor determined to be a discovery violation, but that is challenged at trial as deficient for failing to provide information as required by Maryland Rule 2-402(f)(1)(A). 1 We shall hold that it cannot be excluded on this basis. The rules governing discovery in civil cases in the circuit courts of this State are codified in Title 2, Chapter 400 of the Maryland Rules of Practice and Procedure. It is well settled that, having been developed and refined over many years, one of the fundamental and principal objectives of the discovery rules is to require a party litigant, in response to a discovery request, to disclose fully all of the facts requested by adver ⁷¹⁸ saries and, thereby, eliminate, as far as possible, the necessity of any party to litigation going to trial in a confused or muddled state of mind concerning the facts that gave rise to the litigation, see Beyond Systems, Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 31 , 878 A.2d 567, 585 (2005); Berrain v. Katzen, 331 Md. 693, 697 , 629 A.2d 707, 708 (1993); Androutsos v. Fairfax Hospital, 323 Md. 634, 638 , 594 A.2d 574, 576 (1991); Public Service Comm’n v. Patuxent Valley Conservation League, 300 Md. 200, 216 , 477 A.2d 759, 767 (1984); Kelch, v. Mass Transit Administration, 287 Md. 223, 229-30 , 411 A.2d 449, 453 (1980); Klein v. Weiss, 284 Md. 36, 55 , 395 A.2d 126, 137 (1978); Mason v. Wolfing, 265 Md. 234, 236 , 288 A.2d 880, 881 (1972); Williams v. Moran, 248 Md. 279, 291 , 236 A.2d 274, 281-82 (1967); Pfeiffer v. State Farm Mut. Auto.

Ins. Co., 247 Md. 56, 60-61 , 230 A.2d 87, 90 (1967); Caton Ridge, Inc. v. Bonnett, 245 Md. 268, 276 , 225 A.2d 853, 857 (1967); Miller v. Talbott, 239 Md. 382, 387-88 , 211 A.2d 741, 744-45 (1965); Guerriero v. Friendly Finance Corp., 230 Md. 217, 222-23 , 186 A.2d 881, 884 (1962), in other words, to encourage liberal discovery and minimize surprise at trial. Barnes v. Lednum, 197 Md. 398, 406-07 , 79 A.2d 520, 524 (1951) (“Modern discovery statutes or rules are intended to facilitate discovery, not to stimulate the ingenuity of lawyers and judges to make the pursuit of discovery an obstacle race.”); Hallman v. Gross, 190 Md. 563, 574 , 59 A.2d 304, 309 (1948) (“The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise.”). See State Roads Comm’n v. 370 Ltd. Partnership, 325 Md. 96, 106-111 , 599 A.2d 449 (1991).

Noting “that they are broad and comprehensive in scope, and were deliberately designed to be so,” this Court, in Balto. Transit v. Mezzanotti, 227 Md. 8, 13 , 174 A.2d 768, 771 (1961), has elaborated: “If all of the parties have knowledge of all of the relevant, pertinent and non-privileged facts, or the knowledge of the existence or whereabouts of such facts, the parties should be able properly to prepare their claims and defenses, thereby ⁷¹⁹ advancing the sound and expeditious administration of justice.” Comprehensive and well-conceived, the rules, in order to facilitate achievement of their purpose, include provisions prescribing the forms of discovery that may be utilized, see Rule 2-401(a), 2 addressing the scope of discovery, Rule 2-402, identifying the proper subjects of discovery, Rule 2-402(a), 3 requiring the scheduling of discovery matters and certain pretrial, dispositive motions, Rule 2-504, 4 and providing for sanc ⁷²⁰ tions in the event of violation. Rule 2-433. 5 ⁷²¹ A party’s responsibilities with regard to disclosures involving expert witnesses are also addressed in the discovery rules. Rule 2—402(f)(1)(A) permits a party, by interrogatories to the other party, to require disclosure of each expert that party intends to call as a witness, the subject matter of that testimony, the substance of the expert’s findings and opinions, along with a summary of the grounds for each, and production of any written report the expert made concerning those findings and opinions.

The discovery rules do not address, except insofar as it is implied in the sanctions prescribed, the admissibility at trial of the expert testimony, however. That matter is addressed, and expressly so, in Title 5, “Evidence,” Chapter 7, “Opinions and Expert Testimony,” of the Rules. Rule 5-702 provides, in that regard: “Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.” ⁷²² With this backdrop, we will consider the issue, for the resolution of which we granted certiorari prior to its consideration by the Court of Special Appeals, namely: whether testimony of an expert may be excluded at trial on the basis of a disclosure, made during discovery, in response to interrogatories, that has neither been claimed nor determined to be a discovery violation, but that is challenged at trial as deficient for failing to provide information required by Rule 2-402(f)(1)(A). 6 The Circuit Court for Anne Arundel County held that it could and, in fact, excluded the causation opinion testimony of the expert witness called by the appellee, Daniel McNeill (McNeill or the appellee), on that basis.

An in banc panel of that court reversed that judgment. For the reasons that follow, we shall affirm the in banc panel. I. Beginning in September 2000, the appellee was employed by the appellant, Food Lion (Food Lion or the appellant), as a meat cutter. His duties included cutting large pieces of meat, handling and wrapping trays of meat, and operating a meat grinder.

In the fall of 2001, McNeill began experiencing pain and numbness in his hands and pain radiating from his elbows. He consulted a doctor in connection with this condition, who subsequently diagnosed it as bilateral carpal tunnel syndrome and right cubital tunnel syndrome. Dr. Fulton was that doctor. McNeill filed a claim with the Workers’ Compensation Commission (the Commission).

He alleged that his carpal tunnel and cubital tunnel syndromes were occupational diseases 7 caused by his job duties as meat cutter. Following a hearing, ⁷²³ the Commission denied the claim, finding that the appellee’s condition did not arise “out of and in the course of employment.” McNeill sought judicial review of this decision in the Circuit Court for Anne Arundel County, pursuant to Maryland Code § 9-737 of the Labor and Employment Article. 8 The Circuit Court, in preparation for trial, issued a scheduling order prescribing when discovery materials were required to be submitted. With regard to expert witnesses, the Order provided: “the Proponents not later than February 4, 2003 and the opponents, than March 4, 2003 shall furnish to opposing counsel the names and addresses of all expert witnesses and such other information regarding expert witnesses as is required by the Maryland Rules of Procedure, Sec. 2-402(e)(1).[ 9 ] Expert testimony not so identified shall be inadmissible at trial except for good cause shown.” ⁷²⁴ The Order also required that “any motions [fjor summary judgment or other dispositive motions shall be filed no later than March 20, 2003.” During the discovery process and prior to the deadline, Food Lion sent McNeill a series of interrogatories, interrogatory number two of which asked him to: “Identify each person whom you expect to call as an expert witness at trial, state the subject matter on which the expert is expected to testify, state the substance of the findings and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and attach to your answers any written report made by the expert concerning those findings and opinions.” McNeill answered by listing the name of Dr. Fulton and his address. In addition, he advised: “a copy of Dr. Fulton’s reports are attached.

Dr. Fulton will testify as to the contents of his medical reports, and the causal relationship of the Claimant’s Carpal Tunnel Syndrome to his employment. Further records from North Arundel Hospital will be supplemented.” The appellee also attached the medical reports and Dr. Fulton’s notes regarding the appellee’s follow-up appointments. Subsequently, the appellee forwarded to the appellant’s counsel a letter, dated April 4, 2002, from Dr. Fulton, which, in its entirety, stated: “It is my opinion that Mr. ⁷²⁵ McNeill’s carpal tunnel and ulnar cubital tunnel problems are directly and causily [sic] related from his repetitive work as a meat cutter at Food Lion.” Although the appellant noted the deposition of Dr. Fulton’s custodian of records and obtained additional records from Dr. Fulton’s office, at no time, before or after the expiration of the discovery deadline did it challenge the adequacy or the sufficiency of the appellee’s response to interrogatory number two. Certainly, the appellant did not file a motion to compel.

Nor did the appellant move for summary judgment. On the day of trial, the appellant made an oral motion to prohibit Dr. Fulton from testifying as to the causation between the appellee’s conditions and his employment. 10 Noting Rule 2-402’s requirement that “disclosure of an expert’s opinion must include the summary of the grounds of that opinion,” it maintained that Dr. Fulton’s “one sentence letter ... simply stating that the claimant’s condition was causally related to his work” was deficient in that regard. The appellant argued: “If you look at Dr. Fulton’s opinion on causal relationship, you will see that’s exactly what it is. It is a simple opinion stating his conditions related to his work as a meat cutter.

Period. There is no basis. There is no discussion of the claimant’s specific job duties. There is no discussion of duration of time that he worked there.

There is no discussion of the environment of his job. There is no discussion of the onset of his symptoms, when he first noticed them. There is no discussion of ruling out any of the other many factors for developing carpal tunnel syndrome. “In short, he doesn’t provide [in his report] a factual basis for why he believes the opinion that he rendered. The only thing he offers in one medical report is what the claimant notes to be his symptoms and that he notes that his ⁷²⁶ symptoms are worse at the end of the workday.

Noting the claimant’s opinion is not sufficient to carry the expert’s opinion.” Relying on Giant Food v. Booker, 152 Md.App. 166, 188 , 831 A.2d 481, 493 (2003), the appellant submitted that Dr. Fulton was “render[ing] an opinion of the type where [the expert] opine[s] it is so because I say so.” It concluded that, because no summary of the grounds for the causation opinion was given and discovery was closed, Dr. Fulton should not be permitted to: “[c]ome in now and provide additional bases for [his causation] opinion.... All of his opinion have been provided and it would be unfair to render a new opinion or an additional basis for those opinions, which my expert would not have an opportunity to rebut or refute.” McNeill rejoined that Food Lion’s motion was untimely. Charactering the motion as coming within the orders that the PRETRIAL ORDER required to be filed 20 days prior to the scheduled trial date, 11 he noted what he considered to be an inconsistency in the approach taken by Food Lion: “As you know, the motion to exclude the testimony of Dr. Fulton was filed this morning. The defense counsel would like for you to rely on the pretrial order when it comes to the closing of discovery, but wants you to okay the fact that a motion to exclude the testimony of Dr. Fulton is sufficient to be filed today, as opposed to 20 days before the trial date.” The appellee also argued that it would be improper to exclude Dr. Fulton’s testimony “based on this particular pretrial mo ⁷²⁷ tion,” drawing a distinction between an evidentiary ruling made by the court pursuant to Rule 5-702 after hearing Dr. Fulton’s testimony and the reasons for his causation opinion, and one premised on insufficient discovery.

The Circuit Court rejected the appellee’s arguments and using a Rule 5-702 analysis, granted Food Lion’s motion to preclude the appellee’s expert from testifying “as to the basis of his medical opinions.” At the conclusion of the appellee’s case, 12 the court granted Food Lion’s motion for judgment, concluding that the one sentence report from Dr. Fulton “would not be adequate for you to sustain your burden of proof in this case. There is no medical conclusion.” McNeill, rather than note an appeal to the Court of Special Appeals, opted for review of the judgment by an in banc panel of the Circuit Court. That panel reversed the judgment of the trial court, holding that the trial court’s exclusion of the appellee’s expert’s testimony on causation was clearly erroneous. 13 It reasoned: ⁷²⁸ “While it was very brief, the report [of Dr. Fulton] was sufficient to inform any reader that the medical expert based his opinion, in part, upon Petitioner’s repetitive work as a meat cutter and it is logical to assume that he refers to the repetitive arm motion that would reasonably be expected of a meat cutter. Dr. Fulton had indicated the causal connection between the alleged disability (carpal tunnel and cubital tunnel) and the event which caused it (Petitioner’s repetitive work as a meat cutter at Food Lion).” Significantly, the panel observed, as well, that “Respondent did not object to Petitioner’s Answer to Interrogatories, did not file a Motion to Compel, and did not take Dr. Fulton’s deposition.

In addition, the same information had previously been presented to the [Workers’ Compensation] Commission, of which Respondent was aware.” The panel also- rejected the trial court’s and Food Lion’s reliance on Booker , concluding that Dr. Fulton’s was “not an opinion where an expert opined that a matter ‘was so just because he said it was so.’ ” It relied, in that regard, on Dr. Fulton’s testimony at trial, without objection, to the diagnostic tests McNeill had taken and that they confirmed his diagnosis. In addition, the panel observed that the discovery responses of the appellee made clear that he would be relying on Dr. Fulton’s testimony to explain his reports and the causal connection between his condition and his employment. Food Lion timely noted an appeal to the Court of Special Appeals. On our own motion and prior to proceedings in that ⁷²⁹ court, this Court granted certiorari.

Food Lion v. McNeill, 380 Md. 232 , 844 A.2d 428 (2004). 14 ⁷³⁰ II. Maryland Rule 5-702, which codified the modern common-law rule regarding expert testimony, see Sippio v. State, 350 Md. 633, 649 , 714 A.2d 864, 872 (1998), guides our resolution of this case. That rule governs the admissibility of expert testimony, see Bryant v. State, 393 Md. 196 , 900 A.2d 227 (2006), and describes the basic standard to be applied when the inquiry is into its admissibility. State v. Smullen, 380 Md. 233, 269 , 844 A.2d 429, 450 (2004).

Pursuant to that Rule, the trial court must determine, before admitting expert testimony, that: the witness is qualified, “by knowledge, skill, experience, training, or education” to testify as an expert; the matter about which the witness would testify is an appropriate one for such testimony; and there is “a sufficient factual basis” to support the witness’s expert testimony. See Sippio, 350 Md. at 649 , 714 A.2d at 872 ; Simmons v. State, 313 Md. 33, 41-42 , 542 A.2d 1258, 1262 (1988). Only one of the required determinations is at issue and in play in this case, the last, the determination of the sufficiency of the factual basis for the expert’s conclusion on causation and, as presented, it requires the assessment of the accuracy of that determination. Food Lion candidly concedes that it challenges neither the qualifications of the appellee’s expert nor the amenability or suitability of the operative issue to explication by expert testimony. “[T]he primary thrust of [its] challenge is that Dr. Fulton’s opinion, as provided and dis ⁷³¹ closed during discovery, lacked a sufficient basis and that it fails the test of the third prong of Rule 5-702 and is thus subject to exclusion.” Food Lion maintains, in other words, that, when making the factual basis determination, as a preliminary matter, whether or not sufficiency has been challenged, a trial court may, indeed, must, assess the adequacy of the affected party’s responses to discovery requests.

Implicit in this position, therefore, is that there can be, and, in this case, there was, “a substantial and not merely a technical violation of discovery,” 15 which not only is noticeable, but is sanctionable, by application of the evidence rules. Food Lion has not directed our attention to any case that has directly endorsed the melding of the discovery and evidence rules that it advocates. The cases, on which it relies, Booker, 152 Md.App. 166 , 831 A.2d 481 ; Carter v. Shoppers Food Warehouse MD Corp., 126 Md.App. 147 , 727 A.2d 958 (1999); Franch v. Ankney, 341 Md. 350 , 670 A.2d 951 (1996), certainly do not do so. Nor does Wood v. Toyota Motor Corp., 134 Md.App. 512 , 760 A.2d 315 , cert. denied 362 Md. 189 , 763 A.2d 735 (2000), on which Booker heavily relied.

In each of those cases, Rule 5-702 was applied in its traditional and usual context, as an evidence rule providing the standard for the admission of evidence, not in conjunction with and/or in furtherance of the discovery process. “In Booker , the issue before the court, as in this case, was the sufficiency of the evidence of medical causation to permit the trial court to submit the case to the jury on that issue. 152 Md.App. at 170 , 831 A.2d at 483 . Unlike in this case, however, that issue was not generated during discovery or ⁷³² resolved on the basis of the witness’s discovery responses. The ruling whose propriety was challenged by the appellant and reviewed by the intermediate appellate court was the trial court’s denial of the appellant’s motion for judgment notwithstanding the verdict. Id. at 176 , 831 A.2d at 486 .

Thus, to be sure, the Court of Special Appeals reversed the judgment of the trial court, concluding that the expert testimony regarding causation did not rise above the level of mere speculation or conjecture, id. at 185 , 831 A.2d at 492 , but it did so on a full record, rather than on the basis of a response to discovery. See Franch, 341 at 361-65, 670 A.2d at 956-58 (holding that trial court properly struck expert testimony after it had been presented to the jury when it became clear that the testimony was based on an incorrect interpretation of the law.”). Wood presents a similar factual scenario. There, the trial court excluded the plaintiffs expert’s opinion testimony, finding it to lack a sufficient factual basis and because the expert did not have the necessary qualifications, 134 Md.App. at 519 , 760 A.2d at 319 , and the Court of Special Appeals affirmed.

Id. at 523 , 760 A.2d at 321 . Although the admissibility decision was made at a motion in limine, it was made on the basis of the expert’s deposition testimony. Id. at 524 , 760 A.2d at 322 . The dispute in Carter also turned on whether a sufficient factual basis existed to support the expert’s testimony. 126 Md.App. at 156 , 727 A.2d at 963 .

That dispute was resolved, not by reference to an interrogatory response, whose meaning or sufficiency was in issue, but, as in Wood , on the basis of the expert’s testimony at deposition. Id. The intermediate appellate court affirmed the exclusion of the expert testimony, emphasizing the trial court’s findings that “there [were] no scientific or professional standards to support [the expert’s] conclusion, that the expert performed no scientific testing, the only testing done was to flip over the corner of the mat with his foot, he interviewed [appellant] for twenty to thirty minutes, he inspected [the grocery store] for fifteen minutes four and a half years after the accident occurred, and the mats inspected were made by a ⁷³³ different company than [appellee] used at the time of the accident. Additionally, there is no law nor regulation governing the particular thickness of floor mats.” Id.

Moreover, the rule for which Food Lion advocates is inconsistent with and, indeed, would likely undermine the discovery scheme established by the discovery rules and, in particular, Rules 2-402, 2-432, 2-433 and 2-504. That scheme contemplates full disclosure by all parties so as to avoid surprises and to facilitate and “advanc[e] the sound and expeditious administration of justice.” Mezzanotti, 227 Md. at 13 , 174 A.2d at 771 . It does so by requiring, in the first instance, broad and comprehensive disclosures, Rule 2-402(a); Rule 2-504, in response to requests in the forms prescribed, Rule 2-401 (a), by providing a mechanism for addressing disputes concerning the necessity of complying with a disclosure request and the adequacy of any challenged disclosure, Rules 2-403(a), 16 2-432 17 ; 2-504, and, where required, by prescribing sanctions to ⁷³⁴ be imposed when a party fails to comply, either by not responding at all or responding inadequately. Rule 2-433.

The scheduling order, provided for by Rule 2-504, sets out the perimeters of the discovery process, prescribing the time limits for responding to discovery requests and, ultimately, for completing the discovery process itself. Anticipating that the parties may not always comply with discovery requests, that there may be complete noncompliance, by failing to respond, or disputes as to the propriety or extent of the disclosure sought or required, Rules 2-403 and 2-432 provide a procedure and a mechanism whereby the compliance issues and disputes may be, and should be, resolved. And the rules recognize the need for there to be sanctions; without sanctions, compliance with the discovery rules could not be enforced and, thus, certainly could not be assured. Moreover, sanctions are necessary to insure that a non-complying or ⁷³⁵ defaulting party, does not benefit from that party’s default or non-compliance.

Thus, when the trial court determines that a party has failed to comply with discovery requests, it may order: that the subjects of the discovery requests be taken as established for the purpose of the action, Rule 2-433(a), that the defaulting party not be permitted to support or oppose claims or defenses, or introduce certain evidence, Rule 2-433(b), that proceedings be stayed and/or pleadings or parts of pleadings stricken or stayed, until discovery is provided, or that the action, or a part, be dismissed or a judgment by default be entered. Rule 2-433(c). The result that the appellant was able to achieve by melding the discovery rules and the evidence rules was achievable by application of the discovery rules alone. Discovery violations are cognizable by the trial court during the