What, if any, tolerance does the court have regarding expert disclosure as it related to late disclosure not of the actual expert him/herself, but rather their opinions or their reports. In Maryland a typical discovery interrogatory question will ask for the identification of expert witnesses and the basis and substance of their opinions. Additionally, the court's scheduling order will mirror this requirement and often provides a deadline for each party to disclose experts. So what happens when a party either does not fully comply with the discovery request or fails to disclose the expert opinions or provide a report to the other side. Maryland courts have addressed the issues.
Initially it is worth noting in Admiral Mortgage v. Cooper, 357 Md. 533, 545, 745 A.2d 1026 (2000), the Court of Special Appeals noted the appropriate sanction for a discovery or scheduling order violation is largely discretionary with the trial court. The Court qualified a “governing principle” and pointed 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.” As such 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 also 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”).
In the case of Kleban v. Eghrari-Sabet 174 Md.App. 60, 920 A.2d 606 Md.App.,2007 the court would not allow the plaintiff’s expert to testify to a particular opinion (ie future lost wages) since the opinion was not identified as a part of the opinions this expert would offer at trial. That makes sense if you fail to outline the opinion the expert is offered for then the expert can not testify to that opinion. Conversely in the matter of Food Lion v. McNeill 393 Md. 715, 904 A.2d 464 the court refused to sanction the non disclosing party when the aggrieved party waited until trial to raise their objection not as to the opinion expressed but rather to the disclosed factual basis for the opinion. The court determined the request for exclusion of the expert’s opinion at trial should have been raised as a discovery motion. In this particular case the non disclosing party identified the expert by name but did not set forth any opinions in response to discovery request. As such the aggrieved party created the harm they complained of by not pursuing the discovery failure.
In the matter of Helman v. Mendelson 138 Md.App. 29, 769 A.2d 1025 Md.App.,2001 the court would not permit expert testimony after multiple delays affecting production of expert opinions and an expert report. In this matter the expert’s report was produced only 2 days prior to a hearing on motion for summary judgment. The court found prejudice to the aggrieved party as the foundation for the decision. Conversely in the matter of Maddox v. Stone 174 Md.App. 489, 921 A.2d 912 Md.App.,2007. Trial court abused its discretion by excluding family's expert on ground that expert’s report was disclosed 34 days after deadline contained in scheduling order, in negligence action brought against electrical contractor by family injured in house fire, where expert’s identity was disclosed before deadline in scheduling order, contractor deposed expert well in advance of trial, another expert for family whose report was disclosed prior to scheduling order's deadline had died, family had not engaged in any willful or contemptuous behavior, and trial court did not consider whether any option other than exclusion was an appropriate response to the lack of strict compliance with the discovery deadlines in the scheduling order. The Court sited no prejudice to the other party. See also Lowery v. Smithsburg Emergency Medical Service 173 Md. App. 662, 920 A.2d 546 Md.App.,2007. Former employee's delay in filing report of expert two and one-half months after close of discovery and 12 days before trial was substantial, in action against former employer for defamation and intentional interference with economic relations, so as to support a finding that exclusion of the report was not an abuse of trial court's discretion; delay in obtaining the expert report did not allow appellees sufficient time to prepare their defense and was therefore prejudicial.
The court has outlined five factors to consider in determining whether to apply sanctions. Please see Lowery v. Smithsburg Emergency Medical Service 173 Md. App. 662, 920 A.2d 546 Md.App., 2007. In the exercise of its discretion when applying sanctions for discovery violations, a trial court must consider these five factors: 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.
You must disclose the expert opinions, (this is mandatory), however not necessarily the factual basis for the opinion (unless requested and compelled in discovery), and an expert report, if any, well in advance of creating prejudice to the other side. If you do not the court has the discretion to exclude your expert testimony if after applying the five factors the court determines there is prejudice to the other side.
Initially it is worth noting in Admiral Mortgage v. Cooper, 357 Md. 533, 545, 745 A.2d 1026 (2000), the Court of Special Appeals noted the appropriate sanction for a discovery or scheduling order violation is largely discretionary with the trial court. The Court qualified a “governing principle” and pointed 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.” As such 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 also 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”).
In the case of Kleban v. Eghrari-Sabet 174 Md.App. 60, 920 A.2d 606 Md.App.,2007 the court would not allow the plaintiff’s expert to testify to a particular opinion (ie future lost wages) since the opinion was not identified as a part of the opinions this expert would offer at trial. That makes sense if you fail to outline the opinion the expert is offered for then the expert can not testify to that opinion. Conversely in the matter of Food Lion v. McNeill 393 Md. 715, 904 A.2d 464 the court refused to sanction the non disclosing party when the aggrieved party waited until trial to raise their objection not as to the opinion expressed but rather to the disclosed factual basis for the opinion. The court determined the request for exclusion of the expert’s opinion at trial should have been raised as a discovery motion. In this particular case the non disclosing party identified the expert by name but did not set forth any opinions in response to discovery request. As such the aggrieved party created the harm they complained of by not pursuing the discovery failure.
In the matter of Helman v. Mendelson 138 Md.App. 29, 769 A.2d 1025 Md.App.,2001 the court would not permit expert testimony after multiple delays affecting production of expert opinions and an expert report. In this matter the expert’s report was produced only 2 days prior to a hearing on motion for summary judgment. The court found prejudice to the aggrieved party as the foundation for the decision. Conversely in the matter of Maddox v. Stone 174 Md.App. 489, 921 A.2d 912 Md.App.,2007. Trial court abused its discretion by excluding family's expert on ground that expert’s report was disclosed 34 days after deadline contained in scheduling order, in negligence action brought against electrical contractor by family injured in house fire, where expert’s identity was disclosed before deadline in scheduling order, contractor deposed expert well in advance of trial, another expert for family whose report was disclosed prior to scheduling order's deadline had died, family had not engaged in any willful or contemptuous behavior, and trial court did not consider whether any option other than exclusion was an appropriate response to the lack of strict compliance with the discovery deadlines in the scheduling order. The Court sited no prejudice to the other party. See also Lowery v. Smithsburg Emergency Medical Service 173 Md. App. 662, 920 A.2d 546 Md.App.,2007. Former employee's delay in filing report of expert two and one-half months after close of discovery and 12 days before trial was substantial, in action against former employer for defamation and intentional interference with economic relations, so as to support a finding that exclusion of the report was not an abuse of trial court's discretion; delay in obtaining the expert report did not allow appellees sufficient time to prepare their defense and was therefore prejudicial.
The court has outlined five factors to consider in determining whether to apply sanctions. Please see Lowery v. Smithsburg Emergency Medical Service 173 Md. App. 662, 920 A.2d 546 Md.App., 2007. In the exercise of its discretion when applying sanctions for discovery violations, a trial court must consider these five factors: 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.
You must disclose the expert opinions, (this is mandatory), however not necessarily the factual basis for the opinion (unless requested and compelled in discovery), and an expert report, if any, well in advance of creating prejudice to the other side. If you do not the court has the discretion to exclude your expert testimony if after applying the five factors the court determines there is prejudice to the other side.
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