Motion to Strike Late Designated Expert

Lawyers on both sides of the aisle fail to take discovery deadlines seriously.  We do.

If you are going to be late in naming an expert, you had better have a very good reason or the court is going to strike that expert more often than not.  Below is a sample motion to exclude and expert because of a late expert designation.

IN THE CIRCUIT COURT FOR BALTIMORE COUNTY, MARYLAND

Civil Division

ESTATE OF JOHN SMITH by and through SUSAN SMITH, Personal Representative
Plaintiff,

v.

JAMES DOE, M.D., et al.
Defendants.

Case No.: 06-C-19-000089

PLAINTIFF’S EMERGENCY MOTION TO STRIKE THE NOTICE OF VIDEOTAPED DEPOSITION OF BOB JONES, M.D. AND TO STRIKE DR. JONES AS DEFENDANTS’ EXPERT WITNESS AND REQUEST FOR A HEARING

The Estate of John Smith, by Susan Smith, Personal Representative, and its attorneys, Miller & Zois, LLC, and move that the Notice of Videotaped Deposition of Bob Jones, M.D. be stricken and that Dr. Jones be stricken as Defendants’ expert and states as follows:

1. INTRODUCTION

On July 3, 2018, Defendants filed a Notice to Take the Videotaped Deposition of Bob Jones, M.D. for use at Trial. Dr. Jones is an endocrinologist. See Exhibit 1. The Notice of Videotaped Deposition was filed because, for some unknown reason, Dr. Jones cannot appear live to testify at trial. Because Defendants never disclosed Dr. Jones as an expert witness and did not disclose to the Plaintiff what opinions the doctor has reached in this case and the factual basis for his opinions, which is in violation of the Scheduling Order, Dr. Jones should be stricken as an expert witness.

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2. LAW AND ARGUMENT

The court has the power to regulate discovery and address discovery violations.

Maryland Rule 2-504 grants the court power to issue scheduling orders to ensure that civil cases move efficiently through the litigation process. Although Rule 2-504 does not contain a provision for sanctions for a violation of a scheduling order, Maryland case law is clear that “The purpose of the scheduling order is to establish dates for the completion for discovery, for the filing of dispositive motions, and for the resolution for any other matter pertinent to the management of the case…. The courts have a right to insist on at least substantial, if not strict, compliance with their scheduling orders.” Tobin v. Marriott Hotels, 111 Md. App. 566, 572 (1996).

Defendants violated the Scheduling Order for the designation of expert witnesses resulting in prejudice to the Plaintiff.

The trial is scheduled to being on August 3, 2018. The Scheduling Order issued in this case on July 2, 2017 required the Defendants to identify their experts no later than 180 days before trial which was approximately February 4, 2015. See Exhibit 2. The Scheduling Order contains the following language: “12. The dates contained herein may not be extended by agreement of the parties unless expressly approved in writing by the Court for good cause.” Neither Defendant requested that the Court extend the deadline for the naming of defense experts. On February 4, 2015, the Defendants filed their expert witness designation. See Exhibit 3. Bob Jones, M.D. was not identified. At no time prior to the close of discovery did the Defendants ever inform the Plaintiff that they intended to call Bob Jones as an expert witness in this case.

On June 30, 2018, when the Defendants informed the Plaintiff for the first time, via email, that they intended to take the deposition of Dr. Jones for use at trial, undersigned counsel asked the Defendants to disclose what opinions Dr. Jones was going to give and the factual basis for those opinions. See Exhibit 4. Because Dr. Jones was Mr. Smith’s treating endocrinologist, it was difficult to comprehend how the Defendants actually knew the expert opinions which Dr. Jones intended to give in this case because HIPAA laws precluded the Defendants from speaking with the good doctor. The Defendants candidly admitted that they do not know what opinions Dr. Jones intends to give at trial or the factual basis for those opinions. The Defendants did not take the discovery deposition of Dr. Jones to ascertain what opinions he has if any. The Defendants had the opportunity to depose Dr. Jones but chose not to do so.

It is clear that the Defendants’ decision to call Dr. Jones as an expert witness was a last minute decision. In fact, the Defendants actually subpoenaed Dr. Jones to appear as a live expert witness without the courtesy of informing the Plaintiff that they intended to elicit expert testimony from Dr. Jones at trial. It was only after Dr. Jones informed the Defendants that he was not able to appear at trial, did the Defendants then inform the Plaintiff of their intention to obtain his testimony via a videotaped deposition. The Defendants intentionally chose not to disclose Dr. Jones as an expert witness and then tried to ambush the Plaintiff at trial by calling Dr. Jones as a live expert witness. It was only when Dr. Jones was unavailable to appear at trial did they reveal their decision to call Dr. Jones as a witness by noting the videotaped deposition of Dr. Jones.

The Defendants conduct by: 1) failing to designate Dr. Jones as an expert witness; 2) failing to disclose any opinions and factual basis for any opinions they intended to elicit from Dr. Jones; 3) subpoenaing him to testify at trial without any notice to the Plaintiff; and 4) by failing to identify Dr. Jones, M.D. as an expert witness in their pretrial statement warrant the exclusion of Bob Jones, M.D. as an expert witness in this case.

3. The Defendants do not need Dr. Jones’s testimony for any defense.

Apparently, the Defendants want to elicit testimony from Dr. Jones that in the doctor’s opinion, Mr. Smith was “non-compliant” with his instructions regarding his diabetes, that his non-compliance resulted in his diabetes being poorly controlled, and the poorly controlled diabetes contributed to and/or caused the amputation of Mr. Smith’s leg. These are the exact opinions that the Defendants’ expert vascular surgeon Sam Johnson, M.D. gave during his discovery deposition on Thursday, July 16, 2018. The transcript of Dr. Johnson’s deposition is not yet available. The Defendants’ experts have already been provided with Dr. Jones’s medical chart wherein the incidents of “non-compliance” are apparently documented. They have already reached the opinion that John Smith’s “non-compliance” resulting in poorly controlled diabetes was the cause for the leg amputation and that nothing that defendant doctors did or did not do caused or contributed to the loss of Mr. Smith’s leg. The Defendants’ experts do not need an additional opinion from Dr. Jones in order to render their own opinions. The Defendants have not proffered why the yet undisclosed opinions of Dr. Jones are crucial to any defense they intend to raise or how the will be unfairly prejudiced by not being able to elicit expert testimony from Dr. Jones. Any factual information regarding the care and treatment provided to John Smith by Dr. Jones is already contained in the medical chart relied upon by the defendant’s experts. The Defendants also previously filed a Motion for Summary Judgment wherein they claimed that there were no factual disputes regardi
ng Mr. Smith non-compliance with Dr. Jones’s instructions resulting in poorly controlled diabetes based upon the information contained in the medical chart.

When the Defendants have not one, two, but three expert medical witnesses who will render the same opinions, they do not need a fourth. Dr. Jones would ostensibly be the fourth doctor to render the opinion regarding Mr. Smith’s “non-compliance” with managing his diabetes.

Dr. Jones is also an endocrinologist. None of the Plaintiff’s witnesses are endocrinologists. The Plaintiff did not name any endocrinologist as a rebuttal witness because the Defendants never named an endocrinologist as an expert witness. It is unfairly prejudicial for the Plaintiff to now have to rebut the expert testimony of an expert in a field of endocrinology with trial only a mere two weeks away.

4. This Court has previously struck the Plaintiff’s expert witness Dr. Benson for a much less severe violation of the Scheduling Order.

On May 28, 2018, this Court precluded Dr. Benson from giving expert opinions against the defendant doctor. The Court struck Dr. Benson as an expert witness against defendant doctor even though Dr. Benson’s opinions against the doctor were the same as the opinions given by Plaintiff’s expert podiatrist and were actually disclosed to defendant doctor before Dr. Benson’s discovery deposition was taken. The court found that defendant doctor would be prejudiced by this late disclosure of expert opinions and held that “…Plaintiff’s notification that Dr. Benson would also opine as to the Defendant is the equivalent of designating an additional expert witness approximately five months after the deadline set forth in the Scheduling Order.” The Court also held that “Plaintiff’s late designation of Dr. Benson as to Defendants impeded Defendants’ ability to obtain discovery afforded to them under Maryland Rule, Rule 2-401.”

The discovery laws should be applied equally to all parties in this case. Plaintiff’s violation resulted in the exclusion of expert witness testimony— and so should the Defendants.

5. The emergency nature of this Motion.

With Dr. Jones’s videotaped deposition scheduled for July 23, 2018, the Plaintiff respectfully requests that this Honorable Court render a ruling on this Motion in advance of Dr. Jones’s deposition, or in the alternate, postpone Dr. Jones’s videotaped deposition until such time that the Court has the opportunity to rule on the Emergency Motion.

In summary, the Defendants should not be allowed to take the videotaped deposition of Dr. Jones for use at trial when: 1) Defendants failed to disclose Dr. Jones as an expert witness in accordance with the Scheduling Order; 2) the Defendants do not need Dr. Jones’s opinions for any defense they intend to raise in this case; 3) the Defendants’ experts have already relied upon the information in Dr. Jones’s medical chart to support the opinions they intend to give; 4) the Defendants have at this late date still failed to disclose what opinions Dr. Jones intends to give; and 5) it is impossible for the Plaintiff to name a rebuttal endocrinologist at this late stage in the litigation.

WHEREFORE: The Plaintiff respectfully requests that the Defendants’ Notice of Videotaped Deposition of Dr. Jones is stricken and that Dr. Jones be precluded from providing testimony at trial.

Respectfully submitted,
Miller & Zois, LLC

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