E-Alert Case Updates

Sanctions Against Lead Paint Plaintiff for Sparse Expert Designation

Logan v. LSP Marketing Corp.
No. 2833 (Md. 2010)
By Kevin M. Cox, Associate
Semmes, Bowen & Semmes (www.semmes.com)

This appeal arose from a discovery issue in a lead paint poisoning case. Defendants LSP Marketing Corp. and Basilio Lachica (collectively, “LSP”) filed a motion for sanctions, seeking dismissal of the action with prejudice, or in the alternative, exclusion of all but one of Plaintiff’s experts from testifying at trial. The court denied LSP’s request for dismissal, but granted the motion for sanctions by excluding all but one of Plaintiff’s experts. Without the experts, Plaintiff’s counsel admitted that he was unable to establish a prima facie case and LSP’s motion for summary judgment was granted. This appeal followed. One of the questions on appeal was whether the trial court abused its discretion when it excluded all but one of Plaintiff’s experts.

Plaintiff argued in the Court of Specials Appeals of Maryland that the trial court abused its discretion in ruling that his expert designation was inadequate and duplicative, and then striking those experts from testifying at trial. Notably, Plaintiff’s extremely late expert designation did not include any of the experts’ qualifications, a list of publications, a summary of the grounds for each opinion, or the terms of compensation. Moreover, Plaintiff’s expert designation stated that a written report “will be provided when available” or “as soon as it becomes available.” Essentially, Plaintiff failed to provide the substance of the findings and opinions to which the experts were expected to testify, and a summary of the grounds for each opinion. According to Plaintiff, the expert designation “fully complied with the requirements of Maryland Rule 2-402(f)(1)(A).” The Court of Special Appeals of Maryland, however, disagreed.

The court found this case to be similar to Rodriguez v. Clark, 400 Md. 39 (2007). In that case, the respondent failed to make a good-faith effort to provide access to information about expert witnesses and failed to make good faith attempts to resolve discovery disputes. The Court of Appeals noted that the respondents provided a “sparse preliminary expert witness designation” because they did not state “the substance of [the experts’] findings and opinions, nor a summary of the grounds for each opinion, [they] also did not produce any written reports made by the experts concerning their findings and opinions, as required by Rule 2-402(f)(1)”.

Similarly, in this case, Plaintiff failed to make good-faith efforts to provide access to information about his expert witnesses. Plaintiff’s Answers to Interrogatories did not comply with MD. RULE 2-402 because he failed to include the substance of the experts’ findings and opinions, as well as a summary of the grounds for each expert’s opinion. For example, Plaintiff listed one expert as an expert who would testify “as to the vocational impact and loss of potential earning capacity of lead paint poisoning on the Plaintiff(s).” Although Plaintiff stated that the expert would “base his opinions on a review of the medical records, school records, other expert reports and depositions,” Plaintiff did not state how the expert believed his earning capacity would be affected.

In addition, Plaintiff identified 12 experts, ten of whom were located out-of-state, as experts in pediatric lead poisoning, who would “testify to the extent and permanency of the minor Plaintiff’s injuries due to exposure to lead paint.” Plaintiff failed to disclose, however, what each expert would opine as to the extent and permanency of the injuries, which might range from 0% to 100%. Plaintiff stated that all 12 experts were expected to “testify to the probable source of the lead exposure,” but he did not include what each expert would opine was the probable source and why the expert expressed this belief. Moreover, the experts were to “testify that exposure to lead-based paint at all of the defendants’ subject premises . . . was a substantial factor in the plaintiff’s injuries,” yet Plaintiff did not state the reasons for their findings. And, like the respondents in Rodriguez, Plaintiff stated at the end of each expert designation that a written report “will be provided when available” or “as soon as it becomes available.” Based upon Plaintiff’s “boilerplate” expert designation, the Court of Special Appeals held that it was reasonable for the trial court to infer that the excluded experts’ testimony would be duplicative of the only expert not excluded.

For these reasons, the Court of Special Appeals agreed that Plaintiff’s answers were inadequate. Sanctions were warranted because Plaintiff provided a sparse expert witness designation, elusive answers to interrogatories, and failed to communicate with defense counsel. Therefore, the court concluded that the trial court acted properly in imposing sanctions and in excluding the experts.