Memorandum Opinion - the Circuit Court for Baltimore City

JOHN M. ALDAVE, et al., * IN THEPlaintiffs, * CIRCUIT COURTv. * FORCHARLES L. SCHNEE, M.D., et al., * BALTIMORE CITY, PART 23Defendants. * Case No.: 24-C-10-008951* * * * * * * * * * * *MEMORANDUM OPINIONDefendants University of Maryland Medical System Corporation, et al.’s, University ofMaryland Anesthesiology Associates, P.A.'s, and Jeffrey T. Haugh, M.D.’s Motion to StrikePlaintiffs’ Expert Witnesses Not Designated in Accordance with this Court’s Scheduling Order(docket # 0032000) requests that this Court strike Plaintiffs’ designation of Mona Yudkoff, R.N.and Charles Smolkin, CRC, CVE, CDMS, CCM as experts on the ground that they were notidentified prior to the deadline for expert designation set by this Court’s Pre-Trial SchedulingOrder of January 19, 2011. Upon consideration of Defendants’ University of Maryland MedicalSystem Corporation, et al.’s, University of Maryland Anesthesiology Associates, P.A.'s, andJeffrey T. Haugh, M.D.’s Motion to Strike (docket # 0032000) filed July 5, 2011, DefendantsCharles L. Schnee, M.D.’s and St. Agnes HealthCare, Inc.’s Motion to Strike Late Designation ofExpert Witnesses (docket # 0034000) filed July 12, 2011, Plaintiffs’ Motion to Extend Discoveryto Name a Life Care Planner and Vocational Expert and Plaintiff’s Response to DefendantUniversity of Maryland Medical System, et al.’s Motion to Strike Plaintiffs’ Expert Witnesses(docket # 0030000) filed July 7, 2011, Defendants University of Maryland Medical SystemCorporation, et al.'s, University of Maryland Anesthesiology Associates, P.A.'s, and Jeffrey T.Haugh, M.D.’s Opposition to Plaintiffs’ Motion to Extend Discovery to Name Experts and

Defendants’ Response to Plaintiffs’ Opposition to Motion to Strike Plaintiffs’ Expert Witnessesnot Designated in Accordance with the Court’s Scheduling Order (docket # 0030001) filed July25, 2011, Plaintiffs’ Supplementation to Plaintiffs’ Reply to Defendant’s Response to Plaintiffs’Motion to Extend Discovery to Name a Life Care Planner and Vocational Expert filed August 8,2011, 1 Defendants’ Response to Plaintiffs’ Reply Regarding Motion to Extend Discovery toName Experts/Requesting to Strike Plaintiffs’ Late-Named Experts filed August 8, 2011, 2 andthe arguments presented at the hearing on these matters, this Court denies Defendants’ Motion toStrike.FACTUAL / PROCEDURAL BACKGROUNDThe instant action arises from Plaintiffs’ allegations that Plaintiff John Aldave sustainednumerous injuries as the result of an anterior cervical diskectomy and fusion procedureperformed at the Kernan Orthopedics & Rehabilitation Hospital in Baltimore, Maryland onNovember 13, 2009. Plaintiffs filed their Complaint alleging negligence and injury to PlaintiffJohn Aldave’s marital relationship on December 2, 2010, and Defendants University of MarylandMedical System Corporation, et al., University of Maryland Anesthesiology Associates, P.A., andJeffrey T. Haugh, M.D. filed an answer on January 3, 2010. Soon thereafter, and one day beforeDefendants Charles L. Schnee, M.D. and St. Agnes HealthCare, Inc. filed their answer herein,this Court issued a Pre-Trial Scheduling Order on January 19, 2010. Among other deadlines, theScheduling Order required Plaintiffs to designate their experts within three months from the dateof the Order – April 21, 2011.1 This Court notes that Plaintiffs’ Supplementation to Plaintiffs’ Reply was filed with the Clerk on August 8, 2011,but was not p roperly do cketed.2 This Court notes that Defendants’ Response to Plaintiffs’ Reply was filed with the Clerk on August 8, 2011, butwas not properly docketed.2

designated prior to the April 21, 2011 deadline set by this Court’s Pre-Trial Scheduling Order.Defendants Charles L. Schnee and St. Agnes HealthCare, Inc. joined in the aforementionedMotion to Strike on July 12, 2011.ANALYSISPursuant to Md. Rule 2-504, this Court is required to enter a Scheduling Order in everycivil action, except where exempted by rule, order, or statute. Each scheduling order mustinclude, among other deadlines, the date by which a party must designate each expert it intends tocall at trial. Md. Rule 2-504(b). A party’s obligation to comply with the expert designationdeadlines set forth in any Scheduling Order of this Court includes an obligation to comply withthe provisions of Md. Rule 2-402(g)(1). See Md. Rule 2-504(b). Therefore, prior to the expirationof any expert designation deadline imposed by a Scheduling Order of this Court, a party must notonly identify each expert expected to testify, but must also: (1) state the subject matter on whicheach expert is expected to testify, (2) state the substance of the findings and the opinions towhich the expert is expected to testify and a summary of grounds for each opinion, and (3)produce a written report made by the expert concerning those findings and opinions. Md. Rule 2-402(g)(1).Where a party fails to provide the information required by Md. Rule 2-402(g)(1) prior tothe expert designation deadlines set by any Scheduling Order of this Court, the imposition ofsanctions against the violating party may be appropriate. See Manzano v. Southern MarylandHospital, 347 Md. 17, 29 (1997) (“…the case law of Maryland makes the imposition of sanctionsfor the violation of a scheduling order appropriate.”). Indeed, this Court has “…a right to insist4

on at least substantial, if not strict, compliance with [its] scheduling orders.” Tobin v. MarriottHotels, 111 Md. App. 566, 573 (1996) (citing Betz v. State, 99 Md. App. 60 (1994)).However, this Court is mindful of the fact that Md. Rule 2-504, which outlines itsobligation to enter a scheduling order in every civil case, is not a discovery rule. See Rodriguez v.Clarke, 400 Md. 39, 59-60 (2007) (quoting Dorsey v. Nold, 362 Md. 241, 256 (2001)). To thecontrary, the rule operates “‘…to provide for the setting of time limits on certain discoveryevents; it is, in that regard, a rule of timing, not of substance.’” Id. (quoting Dorsey, 362 Md. at256). Indeed, it is well-established that this Court’s scheduling orders are not to be construed as“‘unyieldingly rigid.’” Maddox v. Stone, 174 Md. App. 489, 498 (2007) (quoting Naughton v.Bankier, 114 Md. App. 641, 653 (1997)). Therefore, the imposition of sanctions for a party’sfailure to strictly comply with the deadlines imposed by a Scheduling Order is rarely appropriatewhere the party has put forth “… good faith efforts to obtain and provide access to informationneeded to proceed to trial.” See Rodriguez, 400 Md. at 61.Nevertheless, a party’s failure to designate its experts within the time allotted by thisCourt’s Scheduling Order may be sufficient to warrant the imposition of sanctions. Indetermining whether sanctions are appropriate, this Court considers: “[1] whether the [party’sviolation of the Court’s Scheduling Order by failing to disclose the information required by Md.Rule 2-402(g)(1)] was technical or substantial, [2] the timing of the ultimate disclosure, [3] thereason, if any, for the violation, [4] the degree of prejudice to the parties respectively offering andopposing the evidence, [5] whether any resulting prejudice might be cured by a postponementand, if so, the overall desirability of a continuance.” Taliaferro v. State, 295 Md. 376, 390-91(1983). Upon consideration of these factors, this Court exercises its broad discretion to determine5

efforts to provide information regarding their vocational experts both before and after thediscovery deadline, as well as Plaintiffs’ rationale for the delay in designating such experts, aresufficient to demonstrate that Plaintiffs’ violation of this Court’s Scheduling Order was technical,rather than substantial. See Taliaferro, 295 Md. at 390-01. Furthermore, notwithstanding anyadditional monetary exposure identified by Plaintiffs’ vocational experts, this Court is notpersuaded that Plaintiffs’ late identification of its experts’ findings and opinions no later thanJune 24, 2011, more than six months in advance of trial, caused prejudice to Defendants. See id.With respect to any potential prejudice to the Defendants, this Court finds particularly instructivethe fact that the bulk of Plaintiffs’ experts—including those expected to testify as to breach of thestandard of care and damages—were timely identified prior to the expert designation deadline.In addition, this Court finds that Plaintiffs’ efforts to provide Defendants withinformation regarding their vocational experts were consistent with Plaintiffs’ obligation tosupplement discovery pursuant to Md. Rule 2-401(e). Indeed, Plaintiffs indicated their intent todesignate vocational experts prior to the expert designation deadline, and continued to provideadditional information regarding those experts as it became available. This Court does not herebyobviate the importance of a party’s obligation to comply with its Scheduling Orders. However, asdiscussed supra, this Court is mindful of the fact that the deadlines set forth in any of itsScheduling Orders are not to be treated as “unyieldingly rigid.” Maddox, 174 Md. App. at 498.To the contrary, a “‘good faith and earnest effort’” to comply with the deadlines imposed by aScheduling Order of this Court may be sufficient to satisfy its purpose. See id. at 499 (quotingNaughton v. Bankier, 114 Md. App. 641, 653 (1997)). Here, this Court finds that Plaintiffs’continual supplementation of the information regarding its vocational experts, which did not7

cause prejudice to Defendants, was sufficient to satisfy the purpose of this Court’s SchedulingOrder to encourage good faith communication and to “‘move the case efficiently through thelitigation process….’” Id. at 498 (quoting Dorsey v. Nold, 362 Md. 241, 255 (2001)).Therefore, for the preceding reasons, and in light of: (1) the purpose of this Court’sScheduling Order, (2) the good faith efforts of the Plaintiffs herein to identify their vocationalexperts and to supplement the information regarding those experts, and (3) the lack of prejudiceto the Defendants, this Court finds that the imposition of sanctions is inappropriate herein. SeeRodriguez, 400 Md. at 59-60.CONCLUSIONFor the preceding reasons, Defendants’ Motions to Strike Plaintiffs’ late, and unofficial,designations of vocational experts. Mona Yudkoff, R.N. and Charles Smolkin, CRC, CVE,CDMS, CCM are hereby DENIED. Plaintiffs’ Motion to Extend Discovery to Name a Life CarePlanner and Vocational Expert is hereby GRANTED. Plaintiff shall officially designate MonaYudkoff, R.N. and Charles Smolkin, CRC, CVE, CDMS, CCM as experts herein within 5 daysfrom the date of this Memorandum Opinion. Defendants shall have priority in scheduling thedepositions of Plaintiffs’ experts Mona Yudkoff, R.N. and Charles Smolkin, CRC, CVE, CDMS,CCM.ORDERED, this 9 th day of August, 2011.______________________________Judge Audrey J.S. Carrion24-C-10-008951cc:Laurence A. Marder, Esq.Salsbury, Clements, Bekman,Marder & Adkins, LLC300 W. Pratt Street, Ste. 4508

Baltimore, Maryland 21201Counsel for PlaintiffsNatalie C. Magdeburger, Esq.Elliott D. Petty, Esq.Hodes, Pessin & Katz, P.A.901 Dulaney Valley Road, Suite 400Towson, Maryland 21204Counsel for Defendants University of MarylandMedical System Corporation and Jeffrey T. Haugh, M.D.Craig B. Merkle, Esq.Aaron L. Moore, Esq.Goodell, DeVries, Leech & Dann, LLPSuite 200One South StreetBaltimore, Maryland 21202-3201Counsel for Defendants Charles L. Schnee, M.D.and St. Agnes HealthCare, Inc.Via U.S. Mail and Facsimile9