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Food Lion, Inc. v. McNeill, No. 2, September Term, 2004. Opinion by Bell, C.J. CIVIL PROCEDURE - DISCOVERY The testim ony of an exp ert may not 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 required by Maryland Rule 2-402 (f) (1) (A), the rule governing requests for identities of those individuals whom the opposing party plans to call as expert witnesses at trial.

IN THE COURT OF APPEALS OF MARYLAND

No. 2

September Term, 2004

FOOD LION, INC. v. DANIEL McNEILL

Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ.

Opinion by Bell, C.J.

Filed:

August 2, 2006

The issue in this case is whether the testimony of an expert may be excluded at trial on the basis of a disclosure , made du ring discov ery in response to interrogato ries, that has neither been claim ed nor de termined to be a discov ery violation, but th at is challenged at trial as deficient for failing to provide information as required by Maryland Rule 2-402 (f) (1) (A). 1 We shall hold that it cannot be excluded on this basis. The rules gove rning disco very in civil cases in the circuit co urts of this State are codified in Title 2, Chapter 400 of the Maryland Rules of Practice and Proc edure. It is w ell settled that, having been developed and refined over many years, one of the fundamental and principal objectives o f the discov ery rules is to require a party litigant, in response to a discovery request, to disclose fully a ll of t he fa cts re quested by advers aries and, ther eby, eliminate, as far as po ssible, the nec essity of any party to litigation going to trial in a confused or muddled state of mind concerning the facts that gave rise to the litigation , see Beyond Systems, Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 31, 878 A.2d 567,

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Maryland Rule 2-402 (f) (1) (A) provides: "(f) Trial Prepa ration-Exp erts. "(1) Expected to Be Called at Trial. "(A) Generally. A party by interrogatories may require any other party to identify each person, other than a party, whom the other pa rty expects to call as an expert witness at trial; to state the subject matter on which the expert is expected to testify; to state the substance of the findings and the opinions to which the expert is expected to testify and a summary of the grounds for each opinion; and to produce any written report made by the expert concerning those findings and opinions. A party also may take the deposition of the e xpert."

585 (2005); Berrain v. Katzen, 331 Md. 693, 697, 629 A.2d 707, 708 (1993); Androutsos v. Fairfax Hospital, 323 Md. 634, 638, 594 A.2d 57 4, 576 (19 91); Pub lic Service C omm 'n v. Patuxent Valley Conservation League, 300 Md. 200, 216, 477 A.2d 759, 767 (1984); Kelch v. Mass Transit Administration, 287 Md. 22 3, 229-30, 411 A .2d 449, 453 (198 0); Klein v. Weiss , 284 Md. 36, 55, 395 A.2 d 126, 13 7 (1978); Mason v. Wolfing, 265 Md. 234, 236, 288 A.2d 880, 881 (1972); Williams v. Moran, 248 Md. 279, 291, 236 A.2d 274, 281-82 (19 67); Pfeiffer v. State Farm Mut. Auto. Ins. Co., 247 Md. 56, 60-61, 230 A.2d 87, 90 (1967); Caton Ridge, Inc. v. Bon nett, 245 Md. 268, 276, 225 A.2d 85 3, 857 (19 67); Miller v. T albott , 239 Md. 382, 387-88, 2 11 A.2d 741, 744 -45 (1965 ); Guerriero v. Friendly Finance Corp., 230 Md. 217, 222-23, 186 A.2 d 881, 88 4 (1962), in other words, to enco urage liberal discovery and minimize s urprise at trial. Barnes v. Lednum, 197 Md. 398, 406-07, 79 A.2d 520, 524 (1951) ("Mod ern discov ery statutes or rules are intende d to facilitate discovery, not to stimulate the ingenuity of lawyers and judges to make the pursuit o f discover y an obstacle race."); Hallman v. Gross, 190 Md. 563, 574, 59 A.2d 304, 309 (1948) ("The depositiondiscovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise."). See State Roa ds Com m'n v. 370 L td. Partnersh ip, 325 Md. 96, 106-111, 599 A.2d 449 (1991 ). Noting "that they are broad and comprehensive in scope, and were deliberately designed to be so ," this Court, in Balto. Tran sit v. Mezz anotti, 227 Md. 8, 13, 174 A.2d 768,

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771 (196 1), has elabo rated: "If all of the parties have knowledge of all of the relevant, pertinent and nonprivileged facts, or the knowledge of the existence or whereabouts of such facts, the parties should be able prope rly to prepare their claims and defenses, thereby a dvanc ing the s ound a nd exp editious admin istration o f justice ." Comprehensive and well-conceived, the rules, in order to facilitate achievement of their purpose, include provisions prescribing the forms of discovery that may be utilized, see Rule 2-401 (a),2 addressing the scope of discovery, Rule 2-402, identifying the proper subjects of discovery, Ru le 2-402 (a), 3 requiring the scheduling of discovery matters and certain pre2

Maryland R ule 2-401 (a) provides: "(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: (1) depositions upon oral examination or written questions, (2) written interrogatories, (3) production or inspection of documents or other tangible things or permission to enter upon land or other property, (4) mental or physical examinations, and (5) requests for admission of facts and genuineness of documents. "(b) Sequence and Timing of Discovery. Unless the court orders otherwise, methods of discov ery may be used in any sequen ce and the fact that a pa rty is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery. The court may at any time order that disc overy be com pleted by a spe cified date o r time, whic h shall be a reasonable time after the action is at issue. Maryland Rule 2-402 (a) provides: "(a) Generally. A party may obtain discovery regarding any matter, not privileged, including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter, if the matter sought is relevant to the subject matter involved in the action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. It is not ground for objection that the information sought is already known to or otherwise obtainable by the party seeking discovery or that the information will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the 3
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trial, dispositive motions, Rule 2-504,4 and providing for sanctions in the event of violation.

discovery of admissible evidence. An interrogatory or deposition question otherwise proper is not objectionable merely because the response involves an opinion or contentio n that relates to f act or the ap plication of la w to fact." This se ction ap plies ex cept as li mited b y other sec tions of the Ru le. Maryland Rule 2-504 (a) requires, unless the County Administrative Judge determines otherwise in a category of case, that a scheduling order be filed in every case, in the form prescribed by the administrative judge. Subsection (b), "Contents of Scheduling Order," sets out the required elements of such an order. It provides: "(1) Required. A scheduling order shall contain: "(A) an assignment of the action to an appropriate scheduling category of a differentiated case management system established pursuant to Rule 16-202; "(B) one or more dates by which each party shall identify each person whom the party expects to call as an expert witness at trial, including all information specified in R ule 2-402 (f)(1); "(C) one or more dates by which each party shall file the notice required by Rule 2-50 4.3 (b) concerning co mputergenerated evidence; "(D) a date by which all discovery must be completed; "(E) a date by which all dispositive motions must be filed; and "(F) any other matter resolv ed at a sche duling con ference h eld pursua nt to Ru le 2-50 4.1." On the other hand, subsection (c) permits other elements to be included in a scheduling order: "(A) any limitations on discovery otherwise permitted under these rules, including reasonable limitations on the number of interrogatories, depositions, and othe r for ms o f discovery; "(B) the res olution of a ny disputes ex isting betwe en the parties relating to discovery; "(C) a date by which any additional parties must be joined; "(D) a spe cific referral to or direction to pursue an available an d approp riate form of alternative dispute resolution, including a requirement that individuals with authority to settle be present or readily available for consultation during the alternative dispute resolution proceeding, provided that the referral or direction conform s to the limitations of Rule 2-50 4.1 (e); "(E) an order designating or providing for the designation of a neutral 4
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Rule 2-433.5 A party's responsibilities with regard to disclosures involving expert w itnesses are also addressed in the discovery rules. Rule 2-402 (f) (1) (A) permits a party, by

interrogatories to the oth er pa rty, to require disc losure of e ach expe rt that party intends to call as a witness, the subject matter of that testimony, the substance of the expert's findings and

expert to be called as the court's witness; "(F) a further scheduling conference or pre-trial conference date; and "(G) a ny other m atter per tinent to the ma nagem ent of th e action ." Contempt is also a possible sanction when a failure to comply with an order compelling discovery has been fou nd. Rule 2-433 (b ). The sanctions permitted pursuant to Maryland Rule 2-433 are: "(1) An order that the matters sought to be discovered, or any other designated facts shall be taken to be established for the purpose of the action in accordance w ith the claim of the party obtaining the ord er; "(2) An order refusing to allow the failing party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matter in evidence; or "(3) An order striking out pleadings or parts thereof, or staying further proceeding until the discovery is provided, or dismissing the action or any part thereof, or entering a judgment by default that includes a determination as to liability and all relief sought by the moving party against the failing party if the court is sa tisfied th at it h as pe rson al jur isdic tion over that party. If, in order to e nable the co urt to enter de fault judgm ent, it is necessa ry to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any matter, the court may rely on affidavits, conduct hearings or order references as appropriate, and, if requested, shall preserve to the plaintiff the righ t of trial b y jury." Rule 2-433 (a). In lieu of, or in addition to, any of the above sanctions, in the absence of a finding that the failure of discovery was substantially justified or that other circumstances would make an award of exp enses unjust, "the reasonable expenses, including a ttorney's fees, cau sed by the failu re" may be a ssessed ag ainst the failing party or the att orney ad vising th e failure to act, or b oth. Id. Prerequisite to the imposition of sanctio ns are a motion filed pu rsuant to Rule 2 -432 (a ) and an oppor tunity for h earing. 5
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opinions, along with a summary of the grounds for each, and production of any written report the expert made concerning those findings and opinions. The discovery rules do not address, except insofar as it is implied in the sanctions prescribed, the admissibility at trial of the expert testimony, however. That matter is addressed, and expressly so, in Title 5, Rule 5-702

"Evid ence," Chapter 7 , "Opinio ns and Expert Testimony," of the Rules. provides, in that regard:

"Expert testimony may be admitted, in the form of an opin ion or other wise, if the court determines that the testimon y will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subjec t, and (3) whether a sufficient factua l basis ex ists to sup port the expert te stimon y." With this backdrop, we will consider the issue, for the resolution of which we granted certiorari prior to its consideration by the Court of Special Appeals, namely: whether 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 required by Rule 2-402 (f) (1) (A ).6 The Circuit Court for Anne A rundel Co unty held that it could and, in fact, excluded the causation opinion testimony of the expert witness

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The question, as framed by the appellant, is: "Did the trial court correctly and within its sound discretion preclude the claimant's expert witness from testifying as to his opinion on causation when th e basis of th at opinion w as never d isclosed du ring discov ery nor in accordance with the court's scheduling order?" 6

called by the appellee , Daniel M cNeill (McNeill or the appellee), on that basis. An in banc panel of that court reversed that judgment. For the reasons that follow, we shall affirm the in banc panel. I. Beginning in September 2000, the appellee was employed by the appellan t, Food Lion (Food Lion or the appellant), as a meat cutter. His duties included cutting large pieces of meat, handling a nd wrap ping trays of m eat, and operating a meat grinder. In the fall of 2001, McN eill began experiencing pain and numbness in his hand s and pain radiating fro m his elbows. He consulted a doctor in connection with this condition, who subsequently diagnosed it as bilateral carpal tunnel syndrome and right cubital tunnel syndrome. Dr. Fulton was that doctor. McNeill filed a claim with the W orkers' Compe nsation Comm ission (the Commission). He allege d that his carpal tunnel and cub ital tunnel syndromes were

occupational diseases7 caused by his job duties as meat cutter. Following a hearing, the Commission denied the claim, finding that the appellee's condition did not arise "out of and in the course of employment." McNeill sought judicial review of this decision in the Circu it

Maryland Code (1991, 1999 Repl. Vol., 2005 Supp.)

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