Preview:

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1179

September Term, 2006 ___________________________________ LAKEYA MADDOX, INDIVIDUALLY, ETC. v.

FRANCIS L. STONE t/a STONE ELECTRICAL CONTRACTORS

Hollander, Meredith, Thieme, Raymond G., Jr., (retired, specially assigned) JJ.

Opinion by Meredith, J.

Filed: May 2, 2007

Lakeya Maddox, individually, and as parent of her minor children, challenges in this appeal the decisions of the Circuit Court for Somerset County to (1) grant appellee Stone Electrical Contractors's motion to strike appellants' expert witness, and (2) deny the appellants' motion for substitution of an expert and/or for reconsideration of the court's order to strike appellants' expert witness.1 We hold that the circuit court abused its

discretion in striking one of the appellants' expert witnesses because of a lack of strict compliance with the scheduling order. Accordingly, we need not reach the question of whether, upon learning of the death of appellants' other expert witness, the circuit court abused its discretion in not allowing the appellants to substitute the earlier stricken expert for the deceased expert. We vacate the judgment of the circuit court and remand the case for further proceedings consistent with this opinion. Facts and Procedural History On November 27, 2003, at approximately 5:44 a.m., Lakeya Maddox and her two children were awakened by the smoke alarms in their home, a rental property located at 30700 S. Division Street,

1

Appellant presents the following two questions: Because the plaintiffs' expert witness died, leaving them with no expert to testify, should the plaintiffs have been permitted to substitute an expert? Because the plaintiffs complied with the scheduling order, did the circuit court abuse its discretion in striking their original expert witness?

1.

2.

Princess Anne, Maryland 21853.

A fire had originated earlier that

night in the home's storage room and had spread throughout the house. The appellants were able to escape the burning house, but sustained injuries. As a result of the injuries sustained in the

fire, the appellants filed a complaint in the Circuit Court for Somerset County alleging negligence on the part of: the owner of the property, Richard Mantz; the property manager, Nelson's Real Estate; the Miller Electric Company; and the appellee, Stone Electrical Contractors. Appellants were eventually able to settle their dispute with all of the defendants except the appellee. On July 12, 2005, pursuant to Maryland Rule 2-504, the circuit court issued a scheduling order which provided, among other things, that: 1. Each person that any party intends to call as an expert witness to support a claim or counter-claim must be identified and all information specified in Md. Rule 2-402(f)(1)(A) must be disclosed to the Court and other parties at least FOUR MONTHS prior to the Trial Date; Each person that any party intends to call as an expert witness to support the defense of a claim or counter-claim must be identified and all information specified in Md. Rule 2-402(f)(1)(A) must be disclosed to the Court and other parties at least THREE MONTHS prior to the Trial Date[.] * * * 5. All discovery authorized by the Maryland Rules must be undertaken so as to be concluded (including resolution of discovery disputes) at least TWO MONTHS prior to the Trial Date ....

2.

2

Because the trial date was scheduled for July 24, 2006, the appellants' deadline for disclosing expert witnesses and Rule 2402(f)(1)(A) information was March 24, 2006, and Stone's deadline was April 24, 2006.2 24, 2006. Although appellants disclosed the names of their proposed experts on March 9, 2006, including "Mike Wald of Investigating Engineering, Inc. of Annapolis, Maryland," Wald did not provide a The close of discovery for the case was May

written report until April 26, 2006, which was after the scheduling order's deadline for appellants to disclose "all information

specified in Md. Rule 2-402(f)(1)(A)." In their answers to interrogatories, filed prior to the March 24, 2006, deadline, appellants identified Deputy State Fire

Marshall Matt Stevens as an expert, and attached a copy of his investigation report. Appellants also indicated that they reserved the right to call any expert designated by the defendants. One

such expert was an electrical investigator, Joseph C. Hauf, III, who had issued a report dated July 2, 2004, expressing an opinion

2

Maryland Rule 2-402(f)(1)(A) states:

A party by interrogatories may require any other party to identify each person, other than a party, whom the other party expects to call as an expert witness at trial; to state the subject matter on 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 expert. 3

that the fire was "caused by the loss of the electrical ground to the [home's electric] service panel." On March 9, 2006,

appellants' counsel wrote to all the defense counsel, including Stone's counsel, disclosing that appellants had retained Mike Wald as an additional expert, stating: I believe our Answers to Interrogatories have already indicated that we intend to call any of the defense experts. Let me make perfectly clear that Plaintiffs intend to call the experts whose names are on the reports given to Nationwide Insurance [which included Joseph Hauf]. Please also understand that I intend to call the Fire Marshall whose deposition was taken. Finally, I have retained Mike Wald of Investigating Engineering, Inc. of Annapolis, Maryland as an additional expert and expect to call him as well. By letter dated March 28, 2006, Stone's counsel advised appellants' counsel that he "would like to schedule the deposition of plaintiffs['] recently noted expert, Mike Wald of Investigating Engineering, Inc. of Annapolis, Maryland .... " Stone's counsel suggested the dates "May 3, 4, [or] 11, 2006." On April 27, 2006, appellants' counsel faxed a copy of Wald's report dated April 26, 2006, to Stone's counsel. Wald's report opined that "the cause of this fire was the lack of a system ground at this residence." Wald further "concluded that this ground conductor was not properly installed by Stone Electric in the first place." In summary, Wald opined: "[T]his fire was the result of illegal and improper electrical work performed by Stone.

Specifically, the primary ground connections were not installed."

4

On May 1, 2006, counsel for Stone wrote to counsel for appellants, stating: "In light of your having disclosed your expert's opinions, I would ask that you please voluntarily consent to my now retaining an expert in this case ...." Appellants'

counsel replied via e-mail on May 2, 2006, stating: "Of course, I have no problem with your finding and designating an expert at this time ...." Also on May 1, 2006, Stone filed a motion to strike Wald, claiming that, because of the post-deadline receipt of Wald's report, Stone "now has no ability to counter the new opinion by the plaintiff's expert." Stone asked the trial court to preclude the

plaintiffs from calling Wald, or, in the alternative, extend the deadline for Stone to retain an expert and continue the trial date. While the motion was pending, Stone deposed Wald on May 17, 2006. On May 26, 2006, the circuit court held a hearing on Stone's motion for an extension of the expert discovery deadline and/or for a continuance, or, in the alternative, for an order precluding Wald from testifying at trial. Stone pointed out that he did not

receive Wald's report until two days after Stone's deadline for identifying defense experts, and urged the court to extend Stone's deadline and reopen discovery. The court responded: "Well, I don't think discovery is going to get reopened ... and I don't think the trial date is going to be continued." At that point in the

hearing, the court focused on Stone's motion to preclude appellants

5

from using Wald as an expert.

The court noted that Wald's report

was provided "a month and two days after the deadline [in the scheduling order]." Concluding that appellants had not satisfied

the requirement of the scheduling order to disclose all Rule 2402(f)(1)(A) information at least three months prior to the trial date, the court granted the motion to strike the expert, and

entered an order "that plaintiff's expert Michael Wald is now stricken." The court explained that it was granting the motion to

exclude appellants' expert because appellants had not met the disclosure deadline established in the court's scheduling order. The court stated: THE COURT[:] All right[.] My finding is that the plaintiff has failed to comply with Section 2, Paragraph 2 of [the court's] scheduling order in that the expert not only [has to be] identified[,] but all information specified in Rule 2-402(f)(1)(A) must be disclosed to the court and the parties at least three months prior to the trial date[.] I will concede that [plaintiffs' counsel] identified the witness on March the 9th, well within the time period, but there is nothing in the court file to indicate that he advised the court[,] and apparently nothing to indicate in writing he advised any of the parties[,] well within the time period[.] Certainly he did not advise the court[.] So I'm granting the motion to strike the expert and I'm signing that order right now. On June 5, 2006, appellants filed a motion for substitution of an expert and for reconsideration of the court's order to strike Wald. In their motion, the appellants asserted that earlier that

day, they were, for the first time, able to confirm that another expert they had named on the issue of causation, Joseph C. Hauf,

6

III, had passed away.3

Appellants asked the court to permit Wald,

even though he had been previously stricken, to substitute for the deceased Hauf. On June 28, 2006, the circuit court, without a

hearing and without issuing any opinion, denied the appellants' motion for substitution of an expert and for reconsideration of the order precluding the use of Wald. Stone renewed its motion for summary judgment, arguing that the appellants could not prove causation and Stone was entitled to judgment as a matter of law. Appellants asked the court to

reconsider its ruling prohibiting the use of Wald as a substitute for the deceased Hauf. The circuit court refused to reconsider its rulings regarding the plaintiffs' witnesses, and, because

appellants conceded they could not prove causation if they could not call an expert witness on causation, the court granted summary judgment for Stone. Appellants timely noted this appeal.4 Discussion Appellants contend that, because they "substantially complied" with the scheduling order, the trial court abused its discretion in

During the course of the May 26, 2006, motion hearing, counsel for Stone stated that it was his understanding that Hauf had died. Appellants' counsel expressed his surprise at the comment on that date. Although this is an appeal following the grant of summary judgment, the propriety of the summary judgment ruling is not at issue here. Counsel for appellants conceded that without Hauf or Wald appellants would be unable to prove a case against Stone, and that unless the court would revise its rulings as to plaintiffs' experts, summary judgment would be appropriate. 7
4

3

striking Wald as an expert witness. They argue that they adequately complied with Maryland law regarding adherence to scheduling orders and that, even if they did not, "the sanction of striking an expert witness is a drastic and case-shattering sanction that is reserved for the most egregious of discovery violations, not supported by the facts of this case." Maryland Rule 2-504(a)(1) requires the circuit court to enter a scheduling order in most civil actions. In Dorsey v. Nold, 362 Md. 241, 255 (2001), the Court of Appeals stated: The principal function of a scheduling order is to move the case efficiently through the litigation process by setting specific dates or time limits for anticipated litigation events to occur. Dorsey involved the disclosure six days before trial that the plaintiffs intended to call an assistant medical examiner as an expert witness. Although the Court of Appeals ultimately concluded that the witness was not one who was required to be disclosed as an expert under then Rule 2-402(e)(1)

Download Maddox v. Stone.pdf

Maryland Law