New Case on Timing of Raising Discovery Issues in Maryland

Last month, the Maryland Court of Appeals decided the case of Food Lion v. McNeill. The issue in McNeill is 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)(1)(A).

2013 Update: This case ended up being more often cited then I realized at the time.

In this case, Plaintiff designated Dr. Edwin C. Fulton to testify as an expert witness in a trial in front of Judge Pamela L. North in Anne Arundel County, Maryland. Dr. Fulton was expected to testify that Food Lion employee Daniel McNeill suffered from “pain and numbness in his hands and pain radiating from his elbows” and was subsequently diagnosed with bilateral carpal tunnel syndrome as well as right cubital tunnel syndrome. Furthermore, he intended to testify that these injuries resulted from McNeill’s employment as a meat cutter at the Glen Burnie Food Lion.

During the pre-trial discovery process, Defendant asked the standard interrogatory of McNeill’s counsel, requesting the names of those people he might expect to act as expert witnesses, the subject matter on which they would testify, the substance of each expert’s findings and opinions and a summary of the grounds upon which each opinion was based. In response to this interrogatory, McNeill’s attorney provided a one sentence letter from Dr. Fulton, simply stating that Dr. Fulton believed Mr. McNeill’s injuries resulted from his repetitive meat cutting duties at Food Lion. Although this information did not include any grounds upon which the opinion was based, the Defendant’s attorney made no challenges or objections to it during the time of discovery.

Obviously, the spirt of the rule is to provide some indication of the expected testimony of the experts, at least in general form. After sitting on this deficiency in discovery, Food Lion’s lawyers made a motion to disallow Dr. Fulton’s testimony due to the fact that, during the discovery process, Maryland Rule 2-402 requires an expert witness to provide not only his or her opinion but also the grounds upon which it is based. Specifically, they argued that the opinion simply stated that his conditions related to his work as a meat cutter and not whether his injury was caused my his job duties. Judge North agreed with the Defendant’s attorney and barred Dr. Fulton’s testimony, which essentially killed Plaintiff’s case. Plaintiff appealed.

The procedure here was unusual. An en banc panel of the Circuit Court reversed Judge North’s decision. Food Lion timely noted an appeal to the Court of Special Appeals. The Court of Appeals, on its own motion, granted certiorari before it reached the CSA. See Food Lion v. McNeill, 380 Md. 232, 844 A.2d 428 (2004). The Court of Appeals agreed with the en banc panel that Defendant should not be permitted to wait to raise the discovery deficiency at trial, finding that a “party who answers a discovery request timely and does not receive any indication from the other party that the answers are inadequate or otherwise deficient should be able to rely, for discovery purposes, on the absence of a challenge as an indication that those answers are in compliance, and, thus not later subject to challenge as inadequate and deficient when offered at trial.”
Specifically, the Court addressed Food Lion’s attorney’s argument that he did not object to the form of the answer that the appellee gave to its discovery request and wanted only to test the sufficiency of the basis of the appellee’s expert’s opinion. As of that time, it was under no obligation to challenge the appellee’s answer, or take the appellee’s expert’s deposition, notwithstanding his belief that the appellee had violated discovery. The Court responded that this will take Maryland “to the time when non-disclosure was the order of the day and disclosure was not encouraged and when discovery was an obstacle course.”
I agree with this holding from the Court of Appeals. Fair play dictates that personal injury lawyers in Maryland are not permitted to sandbag the opposing party with discovery deficiencies that can be easily remedied and then raise the deficiencies at trial. I think the Maryland Court of Appeals agreed that this elevates form or substance which is clearly not the purpose of the Maryland Rule of Procedure and the Maryland Rules of Evidence.

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  • Tony

    I’m surprised that this case made it all the way to the CA. I thought it was self-evident that trial is way too late to raise what is essentially a discovery objection — who knew there was an undecided issue here? Furthermore, framing the argument as concerning the sufficiency of the evidence seems a little lame to me as well. Presumably, the doctor testified at length during trial which makes the one-sentence summary in the answers to interrogatories beside the point. Even in district court, I don’t think a judge should entertain a complaint about discovery unless the complaining party did something to preserve the issue, i.e. send a letter asking for supplementary responses, and a motion following on it. Then the discovery issue can be resolved at the outset of the trial, as necessary.

  • Ron Miller

    Tony, I think the argument is that the expert cannot testify to anything beyond what is in his reports and his designation. Couldn’t Defendant reasonably argue that he can only tesify to the letter of what he has provided, a la the Federal Rules? Those Rule 26 disclosure requrirement can be awful harsh.

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