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Dorsey v. Nold2/10/2000
6(b)(4) trial experts may not be discovered by way of the same interrogatories as 26(b)(4) trial experts. This result flows from precedent as well as logic and common sense. 112 F.R.D. at 108.
"In administering the discovery rules, trial judges '"are vested with a reasonable, sound discretion in applying them, which discretion will not be disturbed in the absence of a showing of abuse."'" E.I. duPont de Nemours & Co., 351 Md. at 405 (citations omitted). In determining whether an abuse of discretion has occurred, we look to:
"(1) whether the disclosure violation was technical or substantial; (2) the timing of the ultimate disclosure; (3) the reason, if any, for the violation; (4) the degree of prejudice to the parties respectively offering and opposing the evidence; and (5) whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance." Balbos, 84 Md. App. at 28 (citation omitted) (affirming a trial court's decision to preclude the testimony of an expert witness whose name was not disclosed in the final pre-trial order due to a typographical error, even though the name had been included in an earlier version of the order).
The record before us establishes that the trial court gave ample attention to all pertinent considerations. To recount, the court expressly considered that the scheduling order commanded the Dorseys to reveal their expert witnesses to appellees by October 20, 1997. Appellees informed the Dorseys of the identities of their expert witnesses by December 30, 1997, within the time frame established by the scheduling order. Although appellees failed to apprize the Dorseys of the substance of the opinions of appellee' experts, the Dorseys waited until four days after the discovery cutoff date to depose defense expert Dr. Hutchins, and thereafter waited until six days before trial to inform appellees that they intended to call Dr. King. The trial court expressly accepted appellees' contention that, at that point, they did not have sufficient time to depose Dr. King. See, e.g., Commercial Union Ins. Co. v. Porter Hayden Co., 116 Md. App. 605, 638-42 (affirming trial court's refusal to permit party in complex asbestos case to call expert witness that it failed to identify until two weeks before trial), cert. denied, 348 Md. 205 (1997).
It is true that appellees were aware of Dr. King's existence, had previously spoken with him, and could have deposed him had they so desired. The circuit court was required to consider that fact, but was not required to find it dispositive. As the United States District Court for the Northern District of Mississippi commented in Lee, 112 F.R.D. at 110:
efense counsel had no reason to prepare to cross examine these particular witnesses until he had reason to believe they would be called as trial witnesses. He attempted to inform himself on that subject and was prevented from doing so by plaintiffs' failure to fully respond to his discovery requests. It is no answer to say that defense counsel could have deposed the witnesses himself. . . . It is for defense counsel, and not plaintiffs, to choose the methods of discovery which he will employ, so long as the choice is not foreclosed by the Rules. (Citation omitted.)
The circuit court noted that the trial date had been set for "years" and could not be rescheduled without great expense and inconvenience. Finally, it observed that, regardless of whether Dr. King testified, the autopsy report would be before the jury. Under the circumstances, even though it would not have been an abuse of discretion to permit Dr. King's testimony, we are unable to declare that the decision to exclude his testimony c
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