Lowery v. Smithsburg Emergency Medical Service

DAVIS, J. Appellants, Robert R. Lowery, Jr. and Amanda Lowery, 1 appeal from a judgment entered by the Circuit Court for Washington County, Maryland in favor of appellees, Smiths-burg Emergency Medical Services (SEMS) and Robert Myerly (Myerly). 2 This case involves allegations of defamation and intentional interference with economic relations claims. At the close of appellants’ case, appellees moved for judgment on all counts and the trial court granted the motion pursuant to Maryland Rule 2-519 on the defamation and intentional interference with economic relations claims. Appellants noted this timely appeal and posit the following issues for our review: 1. Did the trial court err in granting [ajppellees’ Motion in Limine and precluding any testimony whatsoever pertaining to lost wages and benefits for supposed discovery violations? 2.

Did the trial court apply the wrong standard of proof with regard to [ajppellees’ motion for judgment pertaining to forfeiture of the conditional privilege afforded employers ⁶⁶⁷ for statements made about a former employee’s job performance? 3. Did the trial court err in finding there was not sufficient evidence to prove that the conditional privilege afforded statements made about an individual’s employment had been forfeited in this case for the matter to be submitted to the jury? 4. Did the trial court err in finding that there was not sufficient evidence to prove that Mr. Myerly acted intentionally and willfully for Mr. Lowery’s intentional interference with economic relations claim to be submitted to the jury? FACTUAL BACKGROUND Appellant worked for SEMS from January to July in 2001 as a part-time paramedic.

On July 2, 2003, appellant applied to the Federal Bureau of Investigation (FBI) for a job as a Physical Security Specialist (Hazmat) and indicated “Spouse new job” [sic] as the reason for leaving SEMS. On July 17, 2003, the FBI conditionally offered appellant the position with a GS-11 salary base of $42,976 and additional locality pay provided he passed “a background investigation, preemployment polygraph examination, and urinalysis drug test.” Appellant was to be notified if a physical examination was also required. To facilitate the investigation, appellant signed an “Authority to Release Information” form provided by the FBI and the FBI commenced a background investigation. Subsequently, the FBI, by letter dated November 21, 2003, rescinded the conditional offer of employment to appellant because some “information that was developed concerning [appellant’s] employment history with [SEMS], indicate[d] that [appellant] may not be suitable for employment with the FBI.” In addition to a SEMS former supervisor and co-worker (e.g. appellee) who failed to recommend appellant to the FBI, the special investigator’s report, obtained by appellant from the FBI, listed three references who recommended that appellant be hired and two former supervisors who recommended ⁶⁶⁸ against appellant obtaining FBI employment.

Another former supervisor and co-worker told the special investigator that appellant expressed dissatisfaction with supervision. On October 15, 2004, appellant filed a six-count complaint for Defamation, Tortious Interference with a Contract, Tortious Interference with a Prospective Contract, Tortious Interference with an Economic Relationship, Tortious Interference with a Prospective Economic relationship and Loss of Consortium. SEMS and appellee filed their answers on the 12th and 14th of January, 2005, respectively. Appellant answered appellees’ interrogatories on March 24, 2005.

Interrogatories numbers six and seven requested that appellant “[s]tate the names and addresses of all experts whom you propose to call as witnesses at the time of trial____” and that he “[i]temize all damages being and/or to be claimed at trial, the amount for each type of damage, the factual basis in support of each itemized damage, the identities of all individuals with such knowledge, and all documents supporting [appellant’s] response.” Appellant answered interrogatory number six, stating “[appellant has] not yet retained any experts.” He answered number seven by stating that he would claim $1.1 million in lost future pay and benefits basing his lost wages “on his current salary of approximately $24,000 per year” that he received as disability income from his job as a firefighter at BWI Airport. Appellant based his calculations as to FBI pay on his conversations with his purported future supervisor at the FBI, Charles Onesko (Onesko). The trial court established a scheduling order on July 26, 2005 that required all experts be named by August 6, 2005 and all discovery be completed by November 25, 2005. 3 Appellants named Dr. Richard Edelman (Edelman) as an expert to render an opinion in regard to future lost wages on August 5, 2005 and expected to receive information from deposition of Onesko for Edelman’s opinion. Appellant was unsuccessful in deposing Onesko and filed a motion to reopen discovery on ⁶⁶⁹ January 27, 2006, which the trial court denied on February 2, 2006.

As the result of an injury at his job as a firefighter with BWI, appellant received disability payments from the Injured Worker’s Insurance Fund (IWIF). At deposition on May 19, 2005, appellant stated that he believed the payments to be “$25,000 a year.” On December 13, 2005, appellant received notice that he would receive disability retirement benefits in the amount of $2,353.16 per month for the remainder of his life. Appellant forwarded to appellees, on March 14, 2006, an IWIF form indicating that he received $562 per week in 2005, the December 13, 2005 notice of disability retirement and a letter from IWIF discontinuing his benefits due to the December disability retirement determination. Appellant sent Edelman’s report to appellees the following day.

The court ordered all motions in limine to be filed by March 22, 2006 and appellees filed a motion to exclude appellants’ expert as having been untimely designated after the time provided therefore in the discovery schedule had expired. The trial court granted the motion on March 23, 2006 and trial commenced on March 27, 2006 and lasted through March 28th. Appellees moved for judgment after the conclusion of appellants’ evidence and the motion was granted on March 30, 2006. Appellant filed this timely appeal on April 20, 2006.

More facts will be provided as necessary. LEGAL ANALYSIS MOTION IN LIMINE Appellant initially argues that the trial judge abused his discretion by granting the motion in limine to exclude Edelman’s report reasoning that, even if the report was filed after the discovery deadline, that, in and of itself, was no basis for excluding the report. The scheduling order, he maintains, required only that “[appellants’] experts shall be designated by August 6, 2005” and Edelman was timely disclosed as an ⁶⁷⁰ expert who would perform a lost wages analysis. The order did not require an expert report.

Appellant points out that he provided through interrogatories that Edelman would perform the analysis based upon what appellant was then earning through disability and his expected earnings at the FBI. Additionally, the only disclosure outside the discovery period pertaining to appellants’ expert was the production of the expert report. At most, therefore, the trial judge should have only excluded it. In their reply brief, appellants argue that Food Lion, Inc. v. McNeill, 393 Md. 715 , 904 A.2d 464 (2006), is directly on point with the case at hand.

The issue in Food Lion was 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)(l)(A).[ 4 ] The Court in Food Lion held that the testimony could not be excluded on that basis. Id. at 717 , 904 A.2d 464 . Discovery rules do not provide for what expert testimony will be permitted at trial. Id. at 721 , 904 A.2d 464 .

That matter is addressed expressly in Title 5 of the Rules. Id. Rule 5-702 provides: 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 ⁶⁷¹ 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.

Id. (quoting Md. Rule 5-702). In Food Lion, McNeill answered interrogatories propounded before the discovery deadline and listed his expert therein. Food Lion, 393 Md. at 724 , 904 A.2d 464 .

He attached the expert’s report and subsequently forwarded a letter indicating that the expert attributed McNeill’s injuries to his job. Id. On the day of trial, Food Lion made a motion to prohibit the expert’s opinion on the grounds that the “one sentence” letter was insufficient to provide a basis for the expert’s opinion. Id. at 725 , 904 A.2d 464 .

The motion was filed twenty days after the trial court asked for all motions. Id. at 726 , 904 A.2d 464 . The trial court employed a Rule 5-702 analysis, concluding that the one sentence report from the expert would not be adequate to sustain the burden of proof as there was no medical conclusion. Id.

On appeal to an en banc panel of the circuit court, the trial court was found clearly erroneous because, although very brief, the report was deemed sufficient to inform any reader that the expert based his opinion upon the repetitive work of McNeill. 5 The court found significant the fact that Food Lion did not file a motion to compel or take the expert’s deposition. The Court, on its own motion, granted certiorari and held that Food Lion attempted to meld the discovery and evidence rules cited supra. Appellants, in the case sub judice, attempt to liken the facts in Food Lion to the instant case and fail on several points. First, the discovery in Food Lion was completed on time, but, in the instant case, appellants’ expert report was filed after the discovery deadline and the motion filed in Food Lion , unlike the motion in this case, was filed after the deadline ⁶⁷² established by the court.

Further, there was nothing for appellees to challenge in regard to appellants’ answers to interrogatories because appellants indicated that there was no expert identified and, when he was identified, the basis for his expert opinion was not submitted until after the discovery deadline had passed. Appellant argues that the trial court failed to take into account the five factors necessary for it to consider when materials are submitted after the deadline for completion of discovery to determine the proper sanction. Taliaferro v. State, 295 Md. 376, 390-91 , 456 A.2d 29 (1983). In Taliaferro , the Court outlined the factors to be considered as: whether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.

Frequently these factors overlap. They do not lend themselves to a compartmental analysis. Id. Appellant answered in March 2005 that he would seek to recover future wages and benefits totaling $1.1 million and that figure would be calculated from his current salary, e.g., $2,000 per month, as opposed to what the FBI would pay him as a GS-11 employee.

Appellant contends that the figures in his expert’s report match the $1.1 million he initially disclosed in answers to interrogatories and, thus, the insignificant difference between the actual numbers, if anything, benefits appellees. The trial court considered the motion in limine and the response thereto before issuing its order to exclude “[tjestimony from [Edelman] regarding valuation of [appellant’s] lost income and benefits” and “[a]ny evidence from the [appellant] concerning lost income and/or benefits.” The court found that the report was provided after the close of all discovery and, thus, violated the trial court’s scheduling order. ⁶⁷³ Appellees contend that we should not entertain the issue of appellants’ damages on appeal because the grant of its motion for judgment “was based entirely on issues of liability, not damages” and, thus, it is a “moot issue, or at least a non-issue on appeal.” Appellees fail, however, to address the exceptions, we think here pertinent, to the general rule that we do not decide issues which are moot. In our recent decision, in Dove v. Childs, 173 Md.App. 602, 608-09 , 920 A.2d 511, 514-15 (2007), we explained: “ ‘Generally, appellate courts do not decide academic or moot questions. A question is moot if, at the time it is before the Court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.’ ” Attorney Gen. v. Anne Arundel Co. School Bus Contractors Assn., Inc., 286 Md. 324, 327 , 407 A.2d 749 (1979).

The Court of Appeals has recently made clear that, when moot questions are raised on appeal, this Court should dismiss the appeal on the ground of mootness. Cottman v. State, 395 Md. 729 , 912 A.2d 620 (2006), slip. op. at 14. There are, however, exceptions to the general rule that appellate courts will not decide moot questions. In Cottman , the Court of Appeals recognized that “ ‘[tjhere is a public benefit derived from published opinions, which is the reason appellate courts are sometimes willing to decide moot questions where it appears that there are important issues of public interest raised which merit an expression of our views for the guidance of courts and litigants in the future.’ ” Id. at 15, 912 A.2d 620 (Internal quotes and citations omitted.).

This Court may reach the merits of a moot question “ ‘where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest....’” Albert S. v. Dept. of Health, 166 Md.App. 726, 744 , 891 A.2d 402 (2006) (quoting Lloyd v. Bd. of Supervisors of Elections, 206 Md. 36, 43 , 111 A.2d 379 (1954)). ⁶⁷⁴ In Lloyd , the Court of Appeals listed the circumstances under which Maryland appellate courts may decide moot issues: [I]f the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between the government and its citizens, or a duty of government, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision, then the Court may find justification for deciding the issues raised by a question which has become moot, particularly if all of these factors concur with sufficient weight. 206 Md. at 43 , 111 A.2d 379 . Prince George’s County v. Fraternal Order of Police, Prince George’s County, Lodge 89, 172 MdApp. 295, 304 (2007). Because the issue presented is important to the public and is likely to recur in the future, we shall address the issue of damages. We begin with appellants’ first contention as to the exclusion of the expert testimony and loss of income and/or benefits.

We review the grant of the motion in limine for discovery violation under an abuse, of discretion standard. Heineman v. Bright, 124 Md.App. 1, 7 , 720 A.2d 1182 (1998). In applying sanctions for discovery violations, a large measure of discretion is entrusted to the trial court. Id.

See Tydings v. Allied Painting & Decorating Co., 13 Md.App. 433, 436 , 283 A.2d 635 (1971); Lynch v. R.E. Tull & Sons, Inc., 251 Md. 260, 261 , 247 A.2d 286 (1968). In its exercise of that discretion, the trial court must consider the five factors stated supra. Heineman, 124 Md.App. at 8 , 720 A.2d 1182 . 6 Thus, we examine the Taliaferro factors. ⁶⁷⁵ 1. Technical or Substantial Violation Appellant argues that his violation was technical and not substantial because the precise methodology to be used by Edelman was disclosed by his answers to interrogatories on March 24, 2005 and appellant further disclosed, at deposition, that his pay was approximately $25,000 per year.

Thus, he insists, appellees knew of the methodology as to how the lost wages would be calculated, ie., appellant’s disability pay minus how much appellant would have earned at the FBI, since March of 2005. Further, the supplemental information of $2,353.16 per month only clarified the wages appellant disclosed in the March 2005 interrogatory answers as $2,000 per month. The salary appellant finally relied upon was lower than that which he claimed in his answers to interrogatories and, thus, appellees were so informed. Appellant also contends that his failure to supply documents of his actual earnings in 2005 was a technical — and not substantial — violation because none of the documents significantly changed the information he provided appellees in March 2005.

Appellees counter that they were prejudiced by the withholding of the documents and contend that appellant had the documents as early as June 2005. While appellants did notify appellees of Edelman’s testimony, they did not provide the basis for such testimony. Appellants’ designation of Edelman stated that his analysis would be “contingent on the receipt of documents related to salary and benefits paid to FBI employees for the position offered to [appellant].” That the numbers eventually arrived at by the expert were close to those supplied by appellant at deposition does not mean that, at the time of discovery, Edelman’s opinions and the bases for those opinions were disclosed and, thus, the violation of the order was substantial. ⁶⁷⁶ 2. Timing of Disclosure The discovery period was extended to December 30, 2005.

The trial court denied appellants’ motion to extend the discovery period and trial date. Appellants did not relay the information necessary for appellees to mount their defense until eight working days before trial. Irrespective of the concessions appellants were willing to make as to the deposing of their expert, the parties could not, upon their own volition, agree to reopen discovery. The delay in obtaining the expert report did not allow appellees sufficient time to prepare their defense and was therefore prejudicial.

The delay was substantial because it occurred almost two and a half months after the close of the discovery period and twelve days before trial. Appellants’ counsel noted the untimeliness in an e-mail sent prior to faxing the report wherein he suggested that evenings and weekends could be made available for deposition. Appellants’ argument that appellees should have known what would be in their expert’s report falls short of the mark of the report itself which, although not required, contained the bases upon which Edelman would render his opinion as to appellants’ economic losses. 3. Reason for Violation The reason given by appellants for their late filing was that the FBI refused to cooperate in regard to deposing Onesko.

Appellant supplemented his answers to interrogatories with an IWIF form, stating that he had received $562 per week in 2005, a December 13, 2005 “NOTICE OF RETIREMENT ALLOWANCE” indicating he would be paid $2,353.16 per month and a letter dated January 5, 2006 from IWIF terminating his weekly temporary disability checks as of December 22, 2005. Appellant claims that the dates on the facsimile documents could not be correct because, as of June 6, 2005, some documents had yet to be created. In any event, the information was available to appellant before the discovery deadline and could have been provided to appellees. The ⁶⁷⁷ prejudice to appellees in receiving the documents after discovery and twelve days before trial outweighs any prejudice to appellants. 4.

Degree of Prejudice Appellees argue that they were prejudiced by receiving the materials with only “eight working days” from the date of trial in which to depose Edelman, or at that late date, “to have a defense expert look at and respond to such a late report.” Appellants, on the other hand, contend that appellees already had substantially the same information from appellant’s deposition in March 2005 and simply refused to accommodate appellant’s requests. Discovery was extended by a consent motion and the court has “a substantial interest in discouraging the blatant disregard of discovery deadlines by litigants.” Heineman, 124 Md.App. at 10 , 720 A.2d 1182 . The amounts in evidence are similar to those contained in the expert report; accordingly, we find neutral the degree of prejudice for either party by the trial court’s grant of the motion in limine. 5. Curative Postponement Appellants argue that the trial court should have allowed the evidence to come in because it was newly received and substantially the same as given by appellant in deposition.

Appellees counter that appellants’ disclosures came after the close of discovery and denial of a motion to reopen discovery and postpone the trial. A postponement, insist appellants, would have benefited appellees, but was unnecessary because appellants were in possession of the information within the time frame allocated by the trial court in July 2005. We must weigh all of the factors to determine whether the trial court abused its discretion. Id.

The nature of the disclosure, timing and reason all favor appellees because Edelman’s bases for his opinions and the limited time appellees had to ⁶⁷⁸ respond, coupled with the fact that the information was available to appellants prior to December 30th, 7 weigh heavily against appellants. We view the degree of prejudice as a neutral factor. Clearly, the trial court took into consideration that appellant stated in answers to interrogatories that he was “retaining an expert who will document my lost pay and benefits in his report” and “[t]hat report [would] be produced once it [was] completed and [would] more accurately document [appellant’s] damages,” but that ultimately, he failed to produce the report within the required time frame. Appellants contend that the failure to follow the trial court’s scheduling order and meet the discovery deadline should be excused because appellees could, or should, have guessed that the information relied upon by appellant and his expert was already in evidence and, thus, the late filed information, because it “benefitted” appellees, should be accepted.

We cannot conclude that the trial court abused its discretion when it determined that a balance of these factors favored the exclusion of appellants’ expert. The determination by a trial court as to when discovery should be concluded ordinarily