Strict Adherence to Scheduling Orders Is a Must in Maryland Courts

Livingstone v. Greater Washington Anesthesiology and Pain Consultants P.C., No. 2079 (Md. App. August 27, 2009).

In this medical malpractice case, the Court of Special Appeals of Maryland held that the trial court did not abuse its discretion in denying the Plaintiffs the opportunity to designate another expert two months after the scheduled time to do so, but seven months prior to trial.

The Plaintiffs were required to identify their expert witnesses by November 8, 2006 and discovery was to be completed on March 7, 2007. Plaintiffs timely designated three liability experts, one of which included an anesthesiologist. More than two months after the deadline for designating experts, the Plaintiffs filed a "Motion for Leave to Add Expert Witness" to add a second anesthesiologist, which did not include a summary and grounds of any opinions that he would testify to. The sole basis for the motion was that the Defendants had a greater number of experts.

The motion was denied and the Plaintiffs filed a Motion for Reconsideration, relying again on the same argument but adding that the Defendants would not be prejudiced by adding a new expert since discovery had not yet commenced, with the exception of the deposition of one expert, and that the parties had agreed to extend discovery. Again however, the Plaintiffs did not proffer the opinion that the new expert would render, why the expert’s testimony was critical, or how the expert’s opinion would differ from the timely named anesthesiologist. The Motion for Reconsideration was denied.

On appeal, the Plaintiffs contended that the trial court abused its discretion by denying their request to add another expert. Relying on the principal that the function of a scheduling order is to move a case efficiently through the litigation process, that good faith compliance with scheduling orders is important to the administration of the judicial system, and prior case law upholding trial courts’ rulings excluding expert testimony when experts were identified after the scheduling order deadline, the Court of Special Appeals of Maryland held that the trial court did not abuse its discretion in denying the Plaintiffs’ motions. The court explained that the reasons given for non-compliance with a scheduling order and the need for an exemption are significant in granting an exception to the scheduling order. See Maddox v. Stone", 174 Md. App. 489, 499 (2007). Further, the court noted that it will reverse a decision that is commanded to the sound discretion of the trial court if it is unable to discern that there was an analysis of the relevant facts and circumstances of the case that resulted in the exercise of the discretion of the trial judge. See Id. at 502. Since the trial court's order denying the Motion for Reconsideration made it clear that the facts of the case were considered in rendering a decision, the real issue became whether there was an abuse of discretion in denying the Plaintiffs the opportunity to name a second expert.

In making its decision, the Court of Special Appeals did not rely upon the fact that the Plaintiffs' identification of the second anesthesiologist was untimely because trial was not scheduled to begin for seven months and discovery was still ongoing when the Plaintiffs designated the second anesthesiologist. What the court did find significant, however, was that the Plaintiffs did not offer good cause for the late designation. Citing Faith v. Keefer, 127 Md. App. 706, 711 (1991), the court noted that permitting a party to deviate from a scheduling order, without a showing of good cause, is on its face prejudicial and fundamentally unfair to opposing parties. The court did not find good cause in the Plaintiffs' argument that the Defendants had named more experts. Specifically, the court noted that the Plaintiffs did not indicate in their motion why it was necessary to have a second anesthesiologist testify, nor did they indicate why he was not originally designated as an expert, why he "was a key witness, or why, when they already had an expert in the field of anesthesiology, it was necessary to designate another anesthesiologist as an expert witness."

In light of failing to proffer why an additional expert was necessary, the Court of Special Appeals of Maryland held that the trial court did not abuse its discretion in denying the Plaintiffs "Motion for Leave to Add Expert Witness," but added that another trial judge may have granted the motion.