One of the benefits for plaintiffs’ attorneys is that we are far better able to dictate the pace of the litigation. Some squander this opportunity by failing to fully load the gun before firing it. When we serve the defendant with the Complaint, we will, on our first round of discovery, name our experts from the beginning.
Our lawyers have always served a full course of discovery with our Complaint. What we have been doing for the last 15 years is filing our expert designations along with our Complaint. It is one more hoop a lawyer has to jump through when filing a Complaint, but it takes away another deadline you will need to meet down the road. I just did a quick Lexis search, typing in different searches to pull up missed expert deadline cases. In just a few minutes, I found hundreds of cases.
The only caveat to this is that you still need to put the expert deadline on your calendar and check off the list to make sure you do not need additional experts for trial. Sometimes, you think you do not need an economist or a vocational rehabilitation expert when you file suit but you find out that you do over the course of the case. You may also find additional treating doctors over the course of the case if your client is still suffering from his or her injuries that you may want to add down the road.
But, more globally, you want to supplement your responses to conform to the expert’s testimony or what you later expect the expert to say. Maryland courts will be pretty liberal about allowing the expert to testify to whatever opinions that were offered offers in a deposition. But why take that chance? Occasionally, the defendant will not depose the defense experts, which means you do not have that “she said that at deposition” backstop.
Maryland Test If Your Expert Discovery Is Late
In deciding whether late expert answers should be struck, a Maryland trial court will balance these 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; and
- whether any prejudice suffered can be cured by a postponement and, if so, the overall desirability of a continuance
The trial court’s word is likely to the last word. A Circuit Court judge’s decision to strike a designation of experts is to be reviewed only for an abuse of discretion. As the Maryland Court of Special Appeals explained in 2010, its review of a trial court’s resolution of a discovery dispute is ‘”quite narrow; appellate courts are reluctant to second-guess the decision of a trial judge to impose sanctions for a failure of discovery.”
That’s a tough road on appeal. This abuse of discretion will only be found when “no reasonable person would take the view adopted by the court . . . or when the court acts without reference to any guiding rules or principles.” An abuse of discretion may also be found where the ruling under consideration is against the logic and effect of facts and inferences before the court or when the ruling is void of logic and reason.
So this is a battle you want to win at the trial court level and you should do everything you can to put yourself in the best situation. The best way to do that? Name your experts from the very beginning.