The Court of Special Appeals of Maryland (“Appellate Court”), Maryland’s intermediate appellate court, has reversed a trial court’s granting summary judgment in favor of the defendant in a Maryland medical malpractice case. The trial judge had granted judgment for the defendant after finding that the plaintiff had failed to present evidence in support of his Maryland medical malpractice claim because his expert had been precluded from testifying on his behalf during trial. The Appellate Court ruled on October 16, 2014 that the trial judge had wrongly precluded the plaintiff’s expert from testifying in support of the plaintiff’s medical malpractice claim.
The trial judge had ordered on the fist day of trial that the plaintiff’s medical expert produce certain tax records for 2011 and 2012 by 4:00 p.m. that day or he would be precluded from testifying on behalf of the plaintiff (the expert was unable to comply with the judge’s order because he was treating patients all day and was unable to contact his accountant in order to produce the tax records by the deadline). When the expert failed to comply in time, the trial judge precluded his trial testimony.
The Appellate Court noted that the preclusion of an expert’s testimony on behalf of a party during trial is normally reserved for egregious violations of court orders where there is evidence of willful or contemptuous behavior by a party or the party’s attorney. While the plaintiff’s expert’s failure to produce his tax documents that were subpoenaed was a discovery violation, the Appellate Court noted that the expert had not defied a court order but rather had simply requested more time to comply with the request, and that the discovery failure was not such a persistent and deliberate violation to merit the exclusion of the expert’s testimony during trial.
The Alleged Underlying Facts
The plaintiff was having pain and hearing problems in his right ear for which he consulted with the defendant family practitioner twice during 2006 and 2007. The defendant allegedly failed to timely order appropriate tests that would have diagnosed the plaintiff’s brain tumor sooner than when it was diagnosed in 2010. As a result of the late diagnosis, the plaintiff had surgery to remove the brain tumor that resulted in permanent hearing loss, nerve damage, facial palsy, and disfigurement. The plaintiff’s expert would have testified during trial that the plaintiff’s brain tumor should have been diagnosed sooner, when it would have been easier to treat.
The Appellate Court held that the trial judge had abused her discretion by failing to impose an appropriate sanction based on the specific discovery violation: the trial judge had only one possible sanction in mind on the first day of trial — that the plaintiff’s expert’s testimony would be precluded if he failed to produce the requested tax documents that day.
Fitzpatrick v. Lee, et al., No. 0275, September Term 2013.
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