Plaintiffs, * CIRCUIT COURT. CHARLES L. SCHNEE, M.D., et al., * BALTIMORE CITY, PART 23. Defendants. * Case No.: 24-C

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1 JOHN M. ALDAVE, et al., * IN THE Plaintiffs, * CIRCUIT COURT v. * FOR CHARLES L. SCHNEE, M.D., et al., * BALTIMORE CITY, PART 23 Defendants. * Case No.: 24-C * * * * * * * * * * * * MEMORANDUM OPINION Defendants University of Maryland Medical System Corporation, et al. s, University of Maryland Anesthesiology Associates, P.A.'s, and Jeffrey T. Haugh, M.D. s Motion to Strike Plaintiffs Expert Witnesses Not Designated in Accordance with this Court s Scheduling Order (docket # ) 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 not identified prior to the deadline for expert designation set by this Court s Pre-Trial Scheduling Order of January 19, Upon consideration of Defendants University of Maryland Medical System Corporation, et al. s, University of Maryland Anesthesiology Associates, P.A.'s, and Jeffrey T. Haugh, M.D. s Motion to Strike (docket # ) filed July 5, 2011, Defendants Charles L. Schnee, M.D. s and St. Agnes HealthCare, Inc. s Motion to Strike Late Designation of Expert Witnesses (docket # ) filed July 12, 2011, Plaintiffs Motion to Extend Discovery to Name a Life Care Planner and Vocational Expert and Plaintiff s Response to Defendant University of Maryland Medical System, et al. s Motion to Strike Plaintiffs Expert Witnesses (docket # ) filed July 7, 2011, Defendants University of Maryland Medical System Corporation, 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

2 Defendants Response to Plaintiffs Opposition to Motion to Strike Plaintiffs Expert Witnesses not Designated in Accordance with the Court s Scheduling Order (docket # ) filed July 25, 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 to Name Experts/Requesting to Strike Plaintiffs Late-Named Experts filed August 8, 2011, 2 and the arguments presented at the hearing on these matters, this Court denies Defendants Motion to Strike. FACTUAL / PROCEDURAL BACKGROUND The instant action arises from Plaintiffs allegations that Plaintiff John Aldave sustained numerous injuries as the result of an anterior cervical diskectomy and fusion procedure performed at the Kernan Orthopedics & Rehabilitation Hospital in Baltimore, Maryland on November 13, Plaintiffs filed their Complaint alleging negligence and injury to Plaintiff John Aldave s marital relationship on December 2, 2010, and Defendants University of Maryland Medical System Corporation, et al., University of Maryland Anesthesiology Associates, P.A., and Jeffrey T. Haugh, M.D. filed an answer on January 3, Soon thereafter, and one day before Defendants 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, Among other deadlines, the Scheduling Order required Plaintiffs to designate their experts within three months from the date of the Order April 21, 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, but was not properly docketed. 2

3 On April 5, 2011, approximately sixteen (16) days prior to the deadline set by this Court s Pre-Trial Scheduling Order, Plaintiffs designated four expert witnesses to address the standard of care applicable herein, an additional treating rehabilitation medicine specialist to address damages and prognosis, and an economist. Plaintiffs indicated on the same date that they would reserve the right to identify an additional vocational expert once their case became better developed. Some months later, Plaintiffs requested and obtained an evaluation of Plaintiff John Aldave regarding his functional status and the nature and extend of his impairment. As a result of this evaluation, Plaintiffs counsel received a report from Scott Brown, M.D. on May 27, 2011, which provided details as to the nature and extent of Mr. Aldave s permanent injuries. On the basis of this report, Plaintiffs decided to obtain the testimony of a life care planner and a vocational expert. Counsel for Plaintiffs informed Defendants on June 13, 2011 that Plaintiffs intended to call at trial Mona Yodkoff, R.N. as a life care planner, and Charles Smolkin as a vocational rehab expert. Plaintiffs forwarded a copy of a life care plan prepared by Ms. Yudkoff to Defendants on June 17, 2011, and forwarded a copy of a vocational rehab report prepared by Mr. Smolkin to Defendants on June 24, Notwithstanding the notice provided to Defendants, neither Ms. Yudkoff nor Mr. Smolkin were formally designated as witnesses herein at that time. 3 On July 5, 2011, University of Maryland Medical System Corporation, et al., University of Maryland Anesthesiology Associates, P.A., and Jeffrey T. Haugh, M.D. filed the instant Motion to Strike Ms. Yudkoff and Mr. Smolkin on the ground that neither expert was formally 3 This Court further notes that neither Mona Yudkoff, R.N., a life care planner nor Charles Smolkin, CRC, CVE, CDMS, CCM have been officially designated as experts as of the date of this Memorandum Opinion. 3

4 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 aforementioned Motion to Strike on July 12, ANALYSIS Pursuant to Md. Rule 2-504, this Court is required to enter a Scheduling Order in every civil action, except where exempted by rule, order, or statute. Each scheduling order must include, among other deadlines, the date by which a party must designate each expert it intends to call at trial. Md. Rule 2-504(b). A party s obligation to comply with the expert designation deadlines set forth in any Scheduling Order of this Court includes an obligation to comply with the provisions of Md. Rule 2-402(g)(1). See Md. Rule 2-504(b). Therefore, prior to the expiration of any expert designation deadline imposed by a Scheduling Order of this Court, a party must not only identify each expert expected to testify, but must also: (1) state the subject matter on which each expert is expected to testify, (2) state the substance of the findings and the opinions to which 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 to the expert designation deadlines set by any Scheduling Order of this Court, the imposition of sanctions against the violating party may be appropriate. See Manzano v. Southern Maryland Hospital, 347 Md. 17, 29 (1997) ( the case law of Maryland makes the imposition of sanctions for the violation of a scheduling order appropriate. ). Indeed, this Court has a right to insist 4

5 on at least substantial, if not strict, compliance with [its] scheduling orders. Tobin v. Marriott Hotels, 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 its obligation to enter a scheduling order in every civil case, is not a discovery rule. See Rodriguez v. Clarke, 400 Md. 39, (2007) (quoting Dorsey v. Nold, 362 Md. 241, 256 (2001)). To the contrary, the rule operates to provide for the setting of time limits on certain discovery events; it is, in that regard, a rule of timing, not of substance. Id. (quoting Dorsey, 362 Md. at 256). 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 s failure to strictly comply with the deadlines imposed by a Scheduling Order is rarely appropriate where the party has put forth good faith efforts to obtain and provide access to information needed to proceed to trial. See Rodriguez, 400 Md. at 61. Nevertheless, a party s failure to designate its experts within the time allotted by this Court s Scheduling Order may be sufficient to warrant the imposition of sanctions. In determining whether sanctions are appropriate, this Court considers: [1] whether the [party s violation 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] the reason, if any, for the violation, [4] the degree of prejudice to the parties respectively offering and opposing the evidence, [5] whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance. Taliaferro v. State, 295 Md. 376, (1983). Upon consideration of these factors, this Court exercises its broad discretion to determine 5

6 whether sanctions are appropriate. Bartholomee v. Casey, 103 Md. App. 34, 48 (1994) (citing Taliaferro, 295 Md. at ). This Court reviews the factors elicited in Taliaferro in light of the purpose of this Court s Scheduling Order and the purpose of the discovery rules to facilitate the good faith exchange of information. See Rodriguez, 400 Md. at In the instant case, Plaintiffs largely complied with the expert designation deadlines set by this Court s Scheduling Order. Indeed, Plaintiffs designated the bulk of their experts including experts intended to address issues of breach of the standard of care and damages on April 5, 2011, well in advance of the expert designation deadline of April 21, On the same date, Plaintiffs provided notice of the possibility that an additional vocational expert would be designated after their case was further developed. After obtaining an evaluation of Plaintiff John Aldave some months later, Plaintiffs informed Defendants on June 13, 2011 that they had obtained two vocational experts to testify at trial: Mona Yudkoff, R.N., a life care planner; and Charles Smolkin, CRC, CVE, CDMS, CCM, a vocational rehab expert. Defendants received a copy of the life care plan prepared by Ms. Yudkoff on June 17, 2011, 4 and received a copy of the vocational rehab assessment prepared by Mr. Smolkin on June 24, Neither Ms. Yudkoff nor Mr. Smolkin were officially designated as experts at this time. However, albeit two months after the expiration of the expert designation deadline set by this Court s Scheduling Order, it is clear that Plaintiffs had provided sufficient information to comply with the requirements of Md. Rule 2-402(g)(1) as of June 24, Applying the factors elicited in Taliaferro to the facts herein, this Court does not find grounds sufficient to warrant the imposition of sanctions. Indeed, this Court finds that Plaintiffs 4 Defendants Motion to Strike Plaintiffs Expert W itnesses (docket # ) indicates that M s. Yudkoff s report was received o n June 17, T his Court presumes that the inclusion of the year 2003 was the result of a typographical error. 6

7 efforts to provide information regarding their vocational experts both before and after the discovery deadline, as well as Plaintiffs rationale for the delay in designating such experts, are sufficient to demonstrate that Plaintiffs violation of this Court s Scheduling Order was technical, rather than substantial. See Taliaferro, 295 Md. at Furthermore, notwithstanding any additional monetary exposure identified by Plaintiffs vocational experts, this Court is not persuaded that Plaintiffs late identification of its experts findings and opinions no later than June 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 instructive the fact that the bulk of Plaintiffs experts including those expected to testify as to breach of the standard of care and damages were timely identified prior to the expert designation deadline. In addition, this Court finds that Plaintiffs efforts to provide Defendants with information regarding their vocational experts were consistent with Plaintiffs obligation to supplement discovery pursuant to Md. Rule 2-401(e). Indeed, Plaintiffs indicated their intent to designate vocational experts prior to the expert designation deadline, and continued to provide additional information regarding those experts as it became available. This Court does not hereby obviate the importance of a party s obligation to comply with its Scheduling Orders. However, as discussed supra, this Court is mindful of the fact that the deadlines set forth in any of its Scheduling 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 a Scheduling Order of this Court may be sufficient to satisfy its purpose. See id. at 499 (quoting Naughton 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 not 7

8 cause prejudice to Defendants, was sufficient to satisfy the purpose of this Court s Scheduling Order to encourage good faith communication and to move the case efficiently through the litigation 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 s Scheduling Order, (2) the good faith efforts of the Plaintiffs herein to identify their vocational experts and to supplement the information regarding those experts, and (3) the lack of prejudice to the Defendants, this Court finds that the imposition of sanctions is inappropriate herein. See Rodriguez, 400 Md. at CONCLUSION For 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 Care Planner and Vocational Expert is hereby GRANTED. Plaintiff shall officially designate Mona Yudkoff, R.N. and Charles Smolkin, CRC, CVE, CDMS, CCM as experts herein within 5 days from the date of this Memorandum Opinion. Defendants shall have priority in scheduling the depositions of Plaintiffs experts Mona Yudkoff, R.N. and Charles Smolkin, CRC, CVE, CDMS, CCM. ORDERED, this 9 th day of August, Judge Audrey J.S. Carrion 24-C cc: Laurence A. Marder, Esq. Salsbury, Clements, Bekman, Marder & Adkins, LLC 300 W. Pratt Street, Ste

9 Baltimore, Maryland Counsel for Plaintiffs Natalie C. Magdeburger, Esq. Elliott D. Petty, Esq. Hodes, Pessin & Katz, P.A. 901 Dulaney Valley Road, Suite 400 Towson, Maryland Counsel for Defendants University of Maryland Medical System Corporation and Jeffrey T. Haugh, M.D. Craig B. Merkle, Esq. Aaron L. Moore, Esq. Goodell, DeVries, Leech & Dann, LLP Suite 200 One South Street Baltimore, Maryland Counsel for Defendants Charles L. Schnee, M.D. and St. Agnes HealthCare, Inc. Via U.S. Mail and Facsimile 9