Logan v. LSP Marketing Corp.

WRIGHT, J. This appeal arises from a discovery issue in a lead paint poisoning case. On March 22, 2004, appellant, Jamal Logan, filed suit in the Circuit Court for Baltimore City against 22 defendants, including appellees, LSP Marketing Corporation and Basilio Lachica (collectively, “LSP”). On March 10, 2005, LSP filed a motion for sanctions, seeking dismissal of the action with prejudice or, in the alternative, exclusion of all but one of Logan’s experts from testifying at trial. On March 29, 2005, Logan filed an opposition to the motion for sanctions, along with a request for a hearing.

On April 29, 2005, without holding a hearing, the court denied LSP’s request for dismiss ⁶⁸⁹ al but granted the motion for sanctions by excluding all but one of Logan’s experts (“2005 Order”). On May 11, 2005, Logan filed a motion to revise the court’s 2005 Order. On February 8, 2006, without holding a hearing, the court denied Logan’s motion, stating that “no judgment has been entered.” By letter dated March 20, 2006, Logan’s counsel asked the court to revise its 2005 Order. The court responded on March 27, 2006, stating that it “will take no action in response to the letter as [Logan’s counsel] submitted his concerns in the form of a letter rather than a proper motion.” The case proceeded to trial on March 29, 2006.

As a preliminary matter, Logan moved for reconsideration of the court’s 2005 Order. After hearing from counsel, the court denied Logan’s motion. Thereafter, Logan’s counsel stipulated that Logan “could not proceed to trial and was unable to establish a prima facie case under the parameters existing as a result of the [court’s 2005 Order].” Logan requested a postponement of trial, which the court denied. One of the defendants then moved for summary judgment.

Finding “no dispute as to material fact,” the court granted summary judgment “as to all claims asserted against all Defendants by [ ] Jamal Logan.” This appeal followed. Questions Presented Logan presents the four questions, which we have revised for clarity: 1 ⁶⁹⁰ 1) Did the trial court abuse its discretion when it ruled on LSP’s motion for sanctions without a hearing? 2) Did the trial court abuse its discretion when it excluded all but one of Logan’s experts? 3) Did the trial court abuse its discretion when it denied, without a hearing, Logan’s motion to revise the 2005 Order? 4) Did the trial court err or abuse its discretion when it denied Logan’s motion to reconsider the 2005 Order and proceeded to grant summary judgment in favor of LSP? Finding no error or abuse of discretion, we affirm the circuit court’s judgment. Facts LSP served Logan interrogatories on July 30, 2004.

Interrogatory Number 22 provided: Identify all persons whom you expect to call as expert witnesses at trial, and for each such expert state his/her qualifications (including a list of publications written by the expert), the subject matter on which the expert is expected to testify, a summary of the grounds for each opinion, and state the terms of the expert’s compensation; also, attach to your answers copies of all written reports of such experts concerning his/her findings and opinions. Pursuant to the scheduling order, issued by the court on May 13, 2004, Logan was required to respond to “all interrogatory requests concerning the findings and opinions of experts ... no later than 11/06/04.” In addition, all discovery was to be completed “no later than 08/09/05.” On November 1, 2004, having received no response from Logan, LSP sent a letter to Logan’s counsel asking for “responses to the Interrogatories and Requests for Production of Documents as soon as possible.” By letter dated November 12, 2004, LSP informed Logan’s counsel: ⁶⁹¹ [T]he findings and opinions of Plaintiffs experts were due on November 6, 2004. I have not yet received this information. Please forward the findings and opinions of any expert you intend to call at the trial of this matter to me at your earliest convenience.

I am now in an untenable position with my clients. If I do not receive Plaintiffs discovery responses and Plaintiffs experts findings and opinions by November 26, 2004, I will have no choice but to file a Motion for Sanctions. According to LSP, Logan failed to respond. LSP attempted to contact Logan’s counsel by telephone on November 24, 2004, and November 30, 2004.

LSP further avers that Logan’s counsel “failed to respond to these phone calls in any fashion.” On December 3, 2004, LSP filed a “motion to dismiss and/or compel” Logan’s overdue discovery responses. It is undisputed that, on December 16, 2004, Logan produced answers to LSP’s interrogatories. In response to Interrogatory Number 22, Logan provided a list of 16 potential experts, 10 of whom were located out-of-state, along with their addresses and the subject matter on which each expert was expected to testify. Logan’s answer did not include any of the experts’ qualifications, a list of publications, a summary of the grounds for each opinion, or the terms of compensation.

At the end of the paragraph for each expert, Logan stated that a written report “will be provided when available” or “as soon as it becomes available.” For example, Logan listed 12 individuals as experts in “pediatric lead poisoning.” For most, if not all, of those individuals, Logan stated: [Name, address], expert in pediatric lead poisoning. [Name] is expected to testify to the extent and permanency of the minor Plaintiffs injuries due to exposure to lead paint. [Name] will also testify to the probable source of the lead exposure. [Name] will also testify that exposure to lead-based paint at all of the defendants’ subject premises, as stated in the Plaintiffs complaint, was a substantial ⁶⁹² factor in the plaintiffs injuries. A written report will be provided when available. Logan also listed three individuals as experts in “psychology and neuropsychological evaluations of children,” including Dr. Barry Hurwitz, as well as one “Vocational Consultant,” Mark Lieberman. According to Logan’s answer, Lieberman was ... expected to testify as to the vocational impact and loss of potential earning capacity of lead paint poisoning on the Plaintiff(s).

He will base his opinions on a review of the medical records, school records, other expert reports and depositions. In some instances Mr. Lieberman will meet with the Plaintiff(s) and/or family members. We will provide a copy of the report as soon as it becomes available. On December 20, 2004, Logan filed an opposition to LSP’s motion to dismiss and/or compel, arguing that answers had been provided, thus rendering LSP’s motion moot.

On December 28, 2004, LSP filed a reply to Logan’s opposition, wherein it argued that Logan “failed to provide his experts’ reports and/or expert findings and opinions in answer to ... Interrogatory Number 22 and within the deadline set forth in the Scheduling Order.” Specifically, LSP stated that Logan’s answer to Interrogatory Number 22 failed to state “the substance of the findings and opinions to which the expert[s] [are] expected to testify, and a summary of the grounds for each opinion.” Thus, LSP sought dismissal of Logan’s complaint or, in the alternative, “an Order compelling Plaintiff to provide Defendants with executed Answers to Interrogatories, ... and to provide his experts’ reports and/or the substance of the findings and opinions to which Plaintiffs experts are expected to testify, and a summary of the grounds for each opinion within 10 days.” On February 3, 2005, the court signed an order granting LSP’s motion to compel, requiring Logan to “provide his experts’ findings and opinions pursuant to Maryland Rule 2-402(f)[ 2 ] and/or reports within 20 days (twenty) from the date ⁶⁹³ on which this Order is signed.” On February 23, 2005, Logan produced revised and supplemental answers to LSP’s interrogatories. In response to Interrogatory Number 22, Logan deleted two of the previously named experts, including Dr. Hurwitz, whom LSP found to be “the only expert properly designated under Maryland Rule 2-402(f).” Again, Logan provided the subject matter to which each expert would testify, but failed to include the substance of the experts’ findings. For 13 of the 14 experts listed, Logan again stated that a written report “will be provided when available.” As noted, on March 10, 2005, LSP filed a motion for sanctions, seeking dismissal of the action with prejudice or, in the alternative, exclusion of all of Logan’s experts, except Dr. Hurwitz.

In part, LSP argued: To date, Plaintiff has failed to produce any information on the substance of the findings and opinions to which his fourteen identified experts are expected to testify, and failed to provide a summary of the grounds for each opinion of these other experts, which is in direct violation of the Scheduling Order and [the courtj’s February 3, 2005 Order. Instead of producing the experts’ findings and opinions specific to Jamal Logan, Plaintiffs supplemental expert ⁶⁹⁴ designations make the exact same broad reservations on reports and provide the same boilerplate explanations for the opinions and findings of his experts. On March 29, 2005, Logan filed an opposition to the motion for sanctions, along with a request for a hearing. Logan stated that, contrary to LSP’s allegations, the answers provided “fully comply with the requirements of the Maryland Rules, and do state the ‘substance of the finding and opinions to which the experts are expected to testify.’ ” Logan added: [N]othing in the Maryland Rules requires that a report be provided if one has not been produced.

If defendants want to learn more than disclosed in the designations, all defendants need to do is schedule the depositions of the listed experts. On April 29, 2005, without holding a hearing, the court denied LSP’s request for dismissal but granted the motion for sanctions by excluding all but one of Logan’s experts. Relying on Maryland Rule 2 — 402(f)(1)(A), the court explained in its order: ... Except as to Dr. Barry Hurwitz, plaintiff has failed to provide “the substance of the findings and the opinions to which the expert is expected to testify and a summary of the grounds for each opinion,” and therefore, plaintiff has failed to comply with his discovery obligations as to each of the other identified experts in Plaintiffs Answer to Defendants’ Interrogatory No. 22 and Plaintiffs Supplemental Answer to Defendants’ Interrogatory No. 22.

In addition, Plaintiffs answers and supplemental answers to the interrogatories clearly show that the expert testimony that would be provided by each of the experts being excluded pursuant to this order, except Mark Lieberman, would be duplicative of the testimony provided by Dr. Hurwitz, whose designation is being permitted. On May 11, 2005, Logan filed a motion to revise the court’s 2005 Order which was denied. By letter dated March 20, 2006, Logan’s counsel asked the court to revise its 2005 Order, but the court declined to take action. The case proceeded to ⁶⁹⁵ trial on March 29, 2006, at which time Logan, for a third time, requested reconsideration of the court’s 2005 Order.

After hearing from counsel, the court denied Logan’s motion based on the procedural posture leading up to trial. Logan’s counsel then stated that he could not “present a prima facie case” but would be willing to proceed and pick a jury to “protect [his] client’s interest.” In other words, Logan’s counsel “objected] to the [e]ourt considering any motion for summary judgment, even though at the same time [was] willing to stipulate that under the current state of the rulings ... [he] cannot make a prima facie case to go forward w[h]ether it be a court trial or a jury trial.” After considering the parties’ arguments, the court ruled, by order dated April 28, 2006, that “pursuant to the stipulations entered into by Counsel for Plaintiff, there exists no dispute as to material fact, and Summary Judgment is appropriate as to all claims asserted against all Defendants by Plaintiff Jamal Logan.” Discussion I. Grant of Motion for Sanctions without a Hearing Logan first argues that the trial court abused its discretion when it ruled on his motion for sanctions without holding a hearing. Relying on Maryland Rule 2-311(f), Logan contends that the court “was required to hold a hearing ... since the ruling on this motion ultimately adjudicated [his] claims.” Logan’s reliance on Rule 2-311(f), however, is misplaced. As we will explain, the motions court did not abuse its discretion.

Maryland Rule 2 — 311(f), in relevant part, states: (f) Hearing — Other motions. — A party desiring a hearing on a motion ... shall request the hearing in the motion or response under the heading “Request for Hearing.” Except when a rule expressly provides for a hearing, the court shall determine in each case whether a hearing will be held, but the court may not render a decision that is dispositive of a ⁶⁹⁶ claim or defense without a hearing if one was requested as provided in this section. (Emphasis added). “In Fowler v. Printers II, Inc., 89 Md.App. 448 , 598 A.2d 794 (1991), this Court held that Md. Rule 2 — 311(f) requires a trial judge to hold a hearing only if its decision would be dispositive of a claim or defense.” Shelton v. Kirson, 119 Md.App. 325, 329 , 705 A.2d 25 (1998). Further, we “explained that the words ‘claim’ and ‘defense’ were to be narrowly construed, and ‘that these terms are [not] to include the arguments made in order to obtain or thwart collateral litigation matters, like those contained in motions for discovery sanctions....’” Id. at 329-30 , 705 A.2d 25 (quoting Fowler, 89 Md.App. at 485 , 598 A.2d 794 ) (emphasis and additional citations omitted). The Court added: “For a decision to be deemed dispositive of a claim or defense within the contemplation of Rule 2-311(f), it must actually and formally dispose of the claim or defense.

It is not enough to argue that it is the functional equivalent of a dispositive decision or that it lays the inevitable predicate for such a decision.” Id. at 330, 705 A.2d 25 . This case mirrored Shelton . In Shelton , “the appellee moved to preclude testimony by the late-named experts because of inexcusable non-compliance with the time limits set for discovery.” Id. at 327-38 , 705 A.2d 25 . The circuit court granted the motion and, in a later proceeding, granted summary judgment in favor of appellee based on the lack of sufficient evidence as a result of the rulings with respect to discovery.

Id. On appeal, we affirmed the circuit court’s judgment, and stated: The dispositive action in this case was the granting of summary judgment in favor of the appellee____ Earlier discovery rulings have present pertinence only to the extent to which they may have affected the granting of summary judgment. The discovery order precluding the medical experts demonstrably had no such effect. The testimony of the experts, at best, would have established that the minor ⁶⁹⁷ plaintiff suffered from lead poisoning.

The absence of any proof in that regard was not the basis for the granting of summary judgment.... Id. at 328 , 705 A.2d 25 . Likewise, here, the dispositive action was the granting of summary judgment in favor of LSP. Although the grant of summary judgment may have resulted from earlier discovery rulings, the court did not directly dismiss the case when it granted LSP’s motion for sanctions.

As such, the court did not abuse its discretion by ruling on the motion without holding a hearing. Logan compares this case to Karl v. Blue Cross & Blue Shield, 100 Md.App. 743 , 642 A.2d 903 (1994), but that case is distinguishable. In Shelton , we summarized the proceedings in Karl as follows: In Karl , the appellee had filed two motions for sanctions against the appellant for failure to respond timely to discovery requests. In the second motion for sanctions, the one at issue on appeal, the appellee sought the sanction of dismissal of the complaint.

Despite the appellee’s request for a hearing, the trial court granted appellee’s motion to dismiss without holding a hearing on the motion. The appellant appealed. This Court, in vacating the trial court’s judgment, focused on the fact that, although the appellee had filed a motion for sanctions, one of the sanctions requested was dismissal of the complaint. As we