Maddox v. Stone

MEREDITH, J. Lakeya Maddox, individually, and as parent of her minor children, challenges in this appeal the decisions of the Circuit Court for Somerset County to (1) grant appellee Stone Electrical Contractors’s motion to strike appellants’ expert witness, and (2) deny the appellants’ motion for substitution of an expert and/or for reconsideration of the court’s order to strike appellants’ expert witness. 1 2 We hold that the circuit court abused its discretion in striking one of the appellants’ expert witnesses because of a lack of strict compliance with the scheduling order. Accordingly, we need not reach the question of whether, upon learning of the death of appellants’ other expert witness, the circuit court abused its discretion in not allowing the appellants to substitute the earlier stricken expert for the deceased expert. We vacate the judgment of the circuit court and remand the case for further proceedings consistent with this opinion. Facts and Procedural History On November 27, 2003, at approximately 5:44 a.m., Lakeya Maddox and her two children were awakened by the smoke alarms in their home, a rental property located at 30700 S. Division Street, Princess Anne, Maryland 21853.

A fire had originated earlier that night in the home’s storage room and had spread throughout the house. The appellants were able to escape the burning house, but sustained injuries. As a result of the injuries sustained in the fire, the appellants filed a complaint in the Circuit Court for Somerset County alleging ⁴⁹⁴ negligence on the part of: the owner of the property, Richard Mantz; the property manager, Nelson’s Real Estate; the Miller Electric Company; and the appellee, Stone Electrical Contractors. Appellants were eventually able to settle their dispute with all of the defendants except the appellee.

On July 12, 2005, pursuant to Maryland Rule 2-504, the circuit court issued a scheduling order which provided, among other things, that: 1. Each person that any party intends to call as an expert witness to support a claim or counter-claim must be identified and all information specified in Md. Rule 2-402(f)(1)(A) must be disclosed to the Court and other parties at least FOUR MONTHS prior to the Trial Date; 2. Each person that any party intends to call as an expert witness to support the defense of a claim or counterclaim must be identified and all information specified in Md. Rule 2-402(f)(l)(A) must be disclosed to the Court and other parties at least THREE MONTHS prior to the Trial Date[.] 5. All discovery authorized by the Maryland Rules must be undertaken so as to be concluded (including resolution of discovery disputes) at least TWO MONTHS prior to the Trial Date....

Because the trial date was scheduled for July 24, 2006, the appellants’ deadline for disclosing expert witnesses and Rule 2-402(f)(l)(A) information was March 24, 2006, and Stone’s deadline was April 24, 2006. 2 The close of discovery for the case was May 24, 2006. ⁴⁹⁵ Although appellants disclosed the names of their proposed experts on March 9, 2006, including “Mike Wald of Investigating Engineering, Inc. of Annapolis, Maryland,” Wald did not provide a written report until April 26, 2006, which was after the scheduling order’s deadline for appellants to disclose “all information specified in Md. Rule 2-402(f)(l)(A).” In their answers to interrogatories, filed prior to the March 24, 2006, deadline, appellants identified Deputy State Fire Marshall Matt Stevens as an expert, and attached a copy of his investigation report. Appellants also indicated that they reserved the right to call any expert designated by the defendants. One such expert was an electrical investigator, Joseph C. Hauf, III, who had issued a report dated July 2, 2004, expressing an opinion that the fire was “caused by the loss of the electrical ground to the [home’s electric] service panel.” On March 9, 2006, appellants’ counsel wrote to all the defense counsel, including Stone’s counsel, disclosing that appellants had retained Mike Wald as an additional expert, stating: I believe our Answers to Interrogatories have already indicated that we intend to call any of the defense experts. Let me make perfectly clear that Plaintiffs intend to call the experts whose names are on the reports given to Nationwide Insurance [which included Joseph Hauf].

Please also understand that I intend to call the Fire Marshall whose deposition was taken. Finally, I have retained Mike Wald of Investigating Engineering, Inc. of Annapolis, Maryland as an additional expert and expect to call him as well. By letter dated March 28, 2006, Stone’s counsel advised appellants’ counsel that he “would like to schedule the deposition of plaintiffs[’] recently noted expert, Mike Wald of Investigating Engineering, Inc. of Annapolis, Maryland....” Stone’s counsel suggested the dates “May 3, 4, [or] 11, 2006.” On April 27, 2006, appellants’ counsel faxed a copy of Wald’s report dated April 26, 2006, to Stone’s counsel. Wald’s report ⁴⁹⁶ opined that “the cause of this fire was the lack of a system ground at this residence.” Wald further “concluded that this ground conductor was not properly installed by Stone Electric in the first place.” In summary, Wald opined: “[T]his fire was the result of illegal and improper electrical work performed by Stone.

Specifically, the primary ground connections were not installed.” On May 1, 2006, counsel for Stone wrote to counsel for appellants, stating: “In light of your having disclosed your expert’s opinions, I would ask that you please voluntarily consent to my now retaining an expert in this case____” Appellants’ counsel replied via e-mail on May 2, 2006, stating: “Of course, I have no problem with your finding and designating an expert at this time.... ” Also on May 1, 2006, Stone filed a motion to strike Wald, claiming that, because of the post-deadline receipt of Wald’s report, Stone “now has no ability to counter the new opinion by the plaintiff’s expert.” Stone asked the trial court to preclude the plaintiffs from calling Wald, or, in the alternative, extend the deadline for Stone to retain an expert and continue the trial date. While the motion was pending, Stone deposed Wald on May 17, 2006. On May 26, 2006, the circuit court held a hearing on Stone’s motion for an extension of the expert discovery deadline and/or for a continuance, or, in the alternative, for an order precluding Wald from testifying at trial. Stone pointed out that he did not receive Wald’s report until two days after Stone’s deadline for identifying defense experts, and urged the court to extend Stone’s deadline and reopen discovery.

The court responded: ‘Well, I don’t think discovery is going to get reopened ... and I don’t think the trial date is going to be continued.” At that point in the hearing, the court focused on Stone’s motion to preclude appellants from using Wald as an expert. The court noted that Wald’s report was provided “a month and two days after the deadline [in the scheduling order].” Concluding that appellants had not satisfied the requirement of the scheduling order to disclose all Rule 2- ⁴⁹⁷ 402(f)(1)(A) information at least three months prior to the trial date, the court granted the motion to strike the expert, and entered an order “that plaintiffs expert Michael Wald is now stricken.” The court explained that it was granting the motion to exclude appellants’ expert because appellants had not met the disclosure deadline established in the court’s scheduling order. The court stated: THE COURT[:] All right[.] My finding is that the plaintiff has failed to comply with Section 2, Paragraph 2 of [the court’s] scheduling order in that the expert not only [has to be] identified[,] but all information specified in Rule 2-402(f)(1)(A) must be disclosed to the court and the parties at least three months prior to the trial date[.] I will concede that [plaintiffs’ counsel] identified the witness on March the 9th, well within the time period, but there is nothing in the court file to indicate that he advised the court[,] and apparently nothing to indicate in writing he advised any of the parties[,] well within the time period[.] Certainly he did not advise the eourt[.] So I’m granting the motion to strike the expert and I’m signing that order right now. On June 5, 2006, appellants filed a motion for substitution of an expert and for reconsideration of the court’s order to strike Wald.

In their motion, the appellants asserted that earlier that day, they were, for the first time, able to confirm that another expert they had named on the issue of causation, Joseph C. Hauf, III, had passed away. 3 Appellants asked the court to permit Wald, even though he had been previously stricken, to substitute for the deceased Hauf. On June 28, 2006, the circuit court, without a hearing and without issuing any opinion, denied the appellants’ motion for substitution of an expert and for reconsideration of the order precluding the use of Wald. Stone renewed its motion for summary judgment, arguing that the appellants could not prove causation and Stone was entitled to judgment as a matter of law. Appellants asked the ⁴⁹⁸ court to reconsider its ruling prohibiting the use of Wald as a substitute for the deceased Haul The circuit court refused to reconsider its rulings regarding the plaintiffs’ witnesses, and, because appellants conceded they could not prove causation if they could not call an expert witness on causation, the court granted summary judgment for Stone.

Appellants timely noted this appeal. 4 Discussion Appellants contend that, because they “substantially complied” with the scheduling order, the trial court abused its discretion in striking Wald as an expert witness. They argue that they adequately complied with Maryland law regarding adherence to scheduling orders and that, even if they did not, “the sanction of striking an expert witness is a drastic and case-shattering sanction that is reserved for the most egregious of discovery violations, not supported by the facts of this case.” Maryland Rule 2-504(a)(l) requires the circuit court to enter a scheduling order in most civil actions. In Dorsey v. Nold, 362 Md. 241, 255 , 765 A.2d 79 (2001), the Court of Appeals stated: The principal function of a scheduling order is to move the case efficiently through the litigation process by setting specific dates or time limits for anticipated litigation events to occur. Dorsey involved the disclosure six days before trial that the plaintiffs intended to call an assistant medical examiner as an expert witness.

Although the Court of Appeals ultimately concluded that the witness was not one who was required to be disclosed as an expert under then Rule 2-402(e)(l) — the forerunner of Rule 2-402(f)(l) — the Court made extensive ⁴⁹⁹ comments about the interplay between the rules governing discovery and scheduling orders. 5 The Court observed, 362 Md. at 256 , 765 A.2d 79 : Rule 2-504 is not a discovery rule. It is not included in the Title 2, Chapter 400 rules on discovery and, except as provided in § (b)(2)(A), is not intended either to enlarge or constrict the scope of discovery. Its function, to the extent it references discovery in § (b)(1), is to provide for the setting of time limits on certain discovery events; it is, in that regard, a rule of timing, not of substance. In Naughton v. Bankier, 114 Md.App. 641, 653 , 691 A.2d 712 (1997), this Court observed that, although scheduling orders should not be applied in a manner that is “unyieldingly rigid,” litigants must make good faith and reasonable efforts to substantially comply with the court’s deadlines: Though such [scheduling] orders are generally not unyieldingly rigid as extraordinary circumstances which warrant modification do occur, they serve to light the way down the corridors which pending cases will proceed.

Indeed, while absolute compliance with scheduling orders is not always feasible from a practical standpoint, we think it quite reasonable for Maryland courts to demand at least substantial compliance, or, at the barest minimum, a good faith and earnest effort toward compliance. (Emphasis in original.) See also Wormwood v. Batching Systems, Inc., 124 Md.App. 695, 702-05 , 723 A.2d 568 (1999) (noting that substantial compliance with the Maryland Rules will be deemed sufficient where the opposing party has suffered no prejudice). Cf. Swann v. Prudential Insurance Company of America, 95 Md.App. 365, 382 , 620 A.2d 989 (1993) (trial court did not abuse discretion in permitting late named expert to testify where opposing party had opportunity to take deposition), rev’d on other grounds, 334 Md. 231 , 638 A.2d 762 (1994). ⁵⁰⁰ In the related context of discovery deadlines, we have commented: “While it is true that the Maryland Rules of Procedure are to be ‘strictly followed[,]’ the discovery rules in particular are to be ‘liberally construed’ in order to effectuate their purpose.” Gonzales v. Boas, 162 Md.App. 344 , 356 n. 10, 874 A.2d 491 (internal citations omitted), cert. denied, 388 Md. 405 , 879 A.2d 1086 (2005).

Cf. Food Lion v. McNeill, 393 Md. 715, 734 , 904 A.2d 464 (2006) (“Rules 2-403 and 2-432 provide a procedure and a mechanism whereby the [discovery] compliance issues and disputes may be, and should be, resolved.”). Appellants maintain that they have met the “substantial compliance” or “good faith and earnest effort” test because Wald was named two weeks before the scheduling order deadline, and his report was provided to opposing counsel immediately as soon as it was available, 34 days after the deadline but well in advance of trial and prior to the close of discovery. Appellants emphasize that they cooperated in making Wald available for deposition, and that Wald was deposed over two full months prior to trial and prior to the date established in the scheduling order for completion of all discovery.

Appellants argue that, because Wald was deposed well in advance of trial, Stone was not deprived of the ability to prepare a proper defense. Consequently, appellants claimed that they substantially complied with the scheduling scheme that was described by the Court of Appeals in Dorsey as contemplating the disclosure of the experts’ opinions in sufficient time to complete a deposition prior to the close of all discovery. The Court stated in Dorsey, supra, 362 Md. at 256 , 765 A.2d 79 : Rule 2-504(b)(l)(B) anticipates that the party receiving that information [regarding expert witnesses] by the date set by the scheduling order will have some additional time in which to pursue the further discovery allowed under [current Rule 2-402(f)(l)(A)] — ordinarily a deposition of the witness. The date for the completion of that phase is the date specified in the scheduling order pursuant to Rule 2-504(b)(l)(D) — the completion of all discovery. ⁵⁰¹ Notwithstanding the appellants’ claim of substantial compliance with the scheduling order, the circuit court correctly noted that Wald’s written report setting forth the information described in Rule 2-402(f)(l)(A) was delivered to the appellee 34 days after the deadline established in the scheduling order.

The Court of Appeals noted in Admiral Mortgage v. Cooper, 357 Md. 533, 545 , 745 A.2d 1026 (2000), that “the governing principle” is that “the appropriate sanction for a discovery or scheduling order violation is largely discretionary with the trial court.” But the Court also qualified that “governing principle” by pointing out “the more draconian sanctions, of dismissing a claim or precluding the evidence necessary to support a claim, are normally reserved for persistent and deliberate violations that actually cause some prejudice, either to a party or to the court.” Id. The scheduling order is not meant to function as a statute of limitations, and good faith substantial compliance with the scheduling order is ordinarily sufficient to forestay a case-ending sanction. See, e. g., Manzano v. Southern Maryland Hospital, 347 Md. 17, 29 , 698 A.2d 531 (1997) (“dismissal of a claim ... is warranted only in cases of egregious misconduct”). Cf.

Thomas v. State, 397 Md. 557, 572 , 919 A.2d 49, 58 (2007) (“Exclusion of evidence for a discovery violation is not a favored sanction and is one of the most drastic measures that can be imposed.”) Accordingly, although the decision of whether to exclude a key witness because of a party’s failure to meet the deadlines in a scheduling order is generally committed to the discretion of the trial court, the imposition of such a draconian sanction must be supported by circumstances that warrant the exercise of the court’s discretion in such a manner. See, e.g., Taliaferro v. State, 295 Md. 376, 398 , 456 A.2d 29 (alibi witness disclosed on last day of trial), cert. denied, 461 U.S. 948 , 103 S.Ct. 2114 , 77 L.Ed.2d 1307 (1983); Lowery v. Smithsburg Emergency Medical Service, 173 Md.App. 662, 676 , 920 A.2d 546, 554 (2007) (expert report filed two and one-half months after close of discovery, just 12 days before trial); Helman v. Mendelson, 138 Md.App. 29, 43-47 , 769