Food Lion v. McNeill
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Food Lion, Inc. v. McNeill, No. 2, September Term, 2004. Opinion by Bell, C.J. CIVIL PROCEDURE - DISCOVERY The testim ony of an exp ert may not be excluded at trial on the basis of a disclosure, made during discovery in response to interrogatories, that has neither been claimed nor determined to be a discovery violation, but that is challenged at trial as deficient for failing to provide information required by Maryland Rule 2-402 (f) (1) (A), the rule governing requests for identities of those individuals whom the opposing party plans to call as expert witnesses at trial. IN THE COURT OF APPEALS OF MARYLAND No. 2 September Term, 2004 FOOD LION, INC. v. DANIEL McNEILL Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Bell, C.J. Filed: August 2, 2006 The issue in this case is whether the testimony of an expert may be excluded at trial on the basis of a disclosure , made du ring discov ery in response to interrogato ries, that has neither been claim ed nor de termined to be a discov ery violation, but th at is challenged at trial as deficient for failing to provide information as required by Maryland Rule 2-402 (f) (1) (A). 1 We shall hold that it cannot be excluded on this basis. The rules gove rning disco very in civil cases in the circuit co urts of this State are codified in Title 2, Chapter 400 of the Maryland Rules of Practice and Proc edure. It is w ell settled that, having been developed and refined over many years, one of the fundamental and principal objectives o f the discov ery rules is to require a party litigant, in response to a discovery request, to disclose fully a ll of t he fa cts re quested by advers aries and, ther eby, eliminate, as far as po ssible, the nec essity of any party to litigation going to trial in a confused or muddled state of mind concerning the facts that gave rise to the litigation , see Beyond Systems, Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 31, 878 A.2d 567, 1 Maryland Rule 2-402 (f) (1) (A) provides: (f) Trial Prepa ration-Exp erts. (1) Expected to Be Called at Trial. (A) Generally. A party by interrogatories may require any other party to identify each person, other than a party, whom the other pa rty expects to call as an expert witness at trial; to state the subject matter on which the expert is expected to testify; to state the substance of the findings and the opinions to which the expert is expected to testify and a summary of the grounds for each opinion; and to produce any written report made by the expert concerning those findings and opinions. A party also may take the deposition of the e xpert. 585 (2005); Berrain v. Katzen, 331 Md. 693, 697, 629 A.2d 707, 708 (1993); Androutsos v. Fairfax Hospital, 323 Md. 634, 638, 594 A.2d 57 4, 576 (19 91); Pub lic Service C omm 'n v. Patuxent Valley Conservation League, 300 Md. 200, 216, 477 A.2d 759, 767 (1984); Kelch v. Mass Transit Administration, 287 Md. 22 3, 229-30, 411 A .2d 449, 453 (198 0); Klein v. Weiss, 284 Md. 36, 55, 395 A.2 d 126, 13 7 (1978); Mason v. Wolfing, 265 Md. 234, 236, 288 A.2d 880, 881 (1972); Williams v. Moran, 248 Md. 279, 291, 236 A.2d 274, 281-82 (19 67); Pfeiffer v. State Farm Mut. Auto. Ins. Co., 247 Md. 56, 60-61, 230 A.2d 87, 90 (1967); Caton Ridge, Inc. v. Bon nett, 245 Md. 268, 276, 225 A.2d 85 3, 857 (19 67); Miller v. T albott, 239 Md. 382, 387-88, 2 11 A.2d 741, 744 -45 (1965 ); Guerriero v. Friendly Finance Corp., 230 Md. 217, 222-23, 186 A.2 d 881, 88 4 (1962), in other words, to enco urage liberal discovery and minimize s urprise at trial. Barnes v. Lednum, 197 Md. 398, 406-07, 79 A.2d 520, 524 (1951) ( Mod ern discov ery statutes or rules are intende d to facilitate discovery, not to stimulate the ingenuity of lawyers and judges to make the pursuit o f discover y an obstacle race. ); Hallman v. Gross, 190 Md. 563, 574, 59 A.2d 304, 309 (1948) ( The depositiondiscovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise. ). See State Roa ds Com m'n v. 370 L td. Partnersh ip, 325 Md. 96, 106-111, 599 A.2d 449 (1991 ). Noting that they are broad and comprehensive in scope, and were deliberately designed to be so , this Court, in Balto. Tran sit v. Mezz anotti, 227 Md. 8, 13, 174 A.2d 768, 2 771 (196 1), has elabo rated: If all of the parties have knowledge of all of the relevant, pertinent and nonprivileged facts, or the knowledge of the existence or whereabouts of such facts, the parties should be able prope rly to prepare their claims and defenses, thereby a dvanc ing the s ound a nd exp editious admin istration o f justice . Comprehensive and well-conceived, the rules, in order to facilitate achievement of their purpose, include provisions prescribing the forms of discovery that may be utilized, see Rule 2-401 (a),2 addressing the scope of discovery, Rule 2-402, identifying the proper subjects of discovery, Ru le 2-402 (a), 3 requiring the scheduling of discovery matters and certain pre2 Maryland R ule 2-401 (a) provides: (a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: (1) depositions upon oral examination or written questions, (2) written interrogatories, (3) production or inspection of documents or other tangible things or permission to enter upon land or other property, (4) mental or physical examinations, and (5) requests for admission of facts and genuineness of documents. (b) Sequence and Timing of Discovery. Unless the court orders otherwise, methods of discov ery may be used in any sequen ce and the fact that a pa rty is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery. The court may at any time order that disc overy be com pleted by a spe cified date o r time, whic h shall be a reasonable time after the action is at issue. 3 Maryland Rule 2-402 (a) provides: (a) Generally. A party may obtain discovery regarding any matter, not privileged, including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter, if the matter sought is relevant to the subject matter involved in the action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. It is not ground for objection that the information sought is already known to or otherwise obtainable by the party seeking discovery or that the information will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the 3 trial, dispositive motions, Rule 2-504,4 and providing for sanctions in the event of violation. discovery of admissible evidence. An interrogatory or deposition question otherwise proper is not objectionable merely because the response involves an opinion or contentio n that relates to f act or the ap plication of la w to fact. This se ction ap plies ex cept as li mited b y other sec tions of the Ru le. 4 Maryland Rule 2-504 (a) requires, unless the County Administrative Judge determines otherwise in a category of case, that a scheduling order be filed in every case, in the form prescribed by the administrative judge. Subsection (b), Contents of Scheduling Order, sets out the required elements of such an order. It provides: (1) Required. A scheduling order shall contain: (A) an assignment of the action to an appropriate scheduling category of a differentiated case management system established pursuant to Rule 16-202; (B) one or more dates by which each party shall identify each person whom the party expects to call as an expert witness at trial, including all information specified in R ule 2-402 (f)(1); (C) one or more dates by which each party shall file the notice required by Rule 2-50 4.3 (b) concerning co mputergenerated evidence; (D) a date by which all discovery must be completed; (E) a date by which all dispositive motions must be filed; and (F) any other matter resolv ed at a sche duling con ference h eld pursua nt to Ru le 2-50 4.1. On the other hand, subsection (c) permits other elements to be included in a scheduling order: (A) any limitations on discovery otherwise permitted under these rules, including reasonable limitations on the number of interrogatories, depositions, and othe r for ms o f discovery; (B) the res olution of a ny disputes ex isting betwe en the parties relating to discovery; (C) a date by which any additional parties must be joined; (D) a spe cific referral to or direction to pursue an available an d approp riate form of alternative dispute resolution, including a requirement that individuals with authority to settle be present or readily available for consultation during the alternative dispute resolution proceeding, provided that the referral or direction conform s to the limitations of Rule 2-50 4.1 (e); (E) an order designating or providing for the designation of a neutral 4 Rule 2-433.5 A party s responsibilities with regard to disclosures involving expert w itnesses are also addressed in the discovery rules. Rule 2-402 (f) (1) (A) permits a party, by interrogatories to the oth er pa rty, to require disc losure of e ach expe rt that party intends to call as a witness, the subject matter of that testimony, the substance of the expert s findings and expert to be called as the court's witness; (F) a further scheduling conference or pre-trial conference date; and (G) a ny other m atter per tinent to the ma nagem ent of th e action . Contempt is also a possible sanction when a failure to comply with an order compelling discovery has been fou nd. Rule 2-433 (b ). 5 The sanctions permitted pursuant to Maryland Rule 2-433 are: (1) An order that the matters sought to be discovered, or any other designated facts shall be taken to be established for the purpose of the action in accordance w ith the claim of the party obtaining the ord er; (2) An order refusing to allow the failing party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matter in evidence; or (3) An order striking out pleadings or parts thereof, or staying further proceeding until the discovery is provided, or dismissing the action or any part thereof, or entering a judgment by default that includes a determination as to liability and all relief sought by the moving party against the failing party if the court is sa tisfied th at it h as pe rson al jur isdic tion over that party. If, in order to e nable the co urt to enter de fault judgm ent, it is necessa ry to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any matter, the court may rely on affidavits, conduct hearings or order references as appropriate, and, if requested, shall preserve to the plaintiff the righ t of trial b y jury. Rule 2-433 (a). In lieu of, or in addition to, any of the above sanctions, in the absence of a finding that the failure of discovery was substantially justified or that other circumstances would make an award of exp enses unjust, the reasonable expenses, including a ttorney's fees, cau sed by the failu re may be a ssessed ag ainst the failing party or the att orney ad vising th e failure to act, or b oth. Id. Prerequisite to the imposition of sanctio ns are a motion filed pu rsuant to Rule 2 -432 (a ) and an oppor tunity for h earing. 5 opinions, along with a summary of the grounds for each, and production of any written report the expert made concerning those findings and opinions. The discovery rules do not address, except insofar as it is implied in the sanctions prescribed, the admissibility at trial of the expert testimony, however. That matter is addressed, and expressly so, in Title 5, Evid ence, Chapter 7 , Opinio ns and Expert Testimony, of the Rules. Rule 5-702 provides, in that regard: Expert testimony may be admitted, in the form of an opin ion or other wise, if the court determines that the testimon y will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subjec t, and (3) whether a sufficient factua l basis ex ists to sup port the expert te stimon y. With this backdrop, we will consider the issue, for the resolution of which we granted certiorari prior to its consideration by the Court of Special Appeals, namely: whether testimony of an expert may be excluded at trial on the basis of a disclosure, made during discovery, in response to interrogatories, that has neither been claimed nor determined to be a discovery violation, but that is challenged at trial as deficient for failing to provide information required by Rule 2-402 (f) (1) (A ).6 The Circuit Court for Anne A rundel Co unty held that it could and, in fact, excluded the causation opinion testimony of the expert witness 6 The question, as framed by the appellant, is: Did the trial court correctly and within its sound discretion preclude the claimant s expert witness from testifying as to his opinion on causation when th e basis of th at opinion w as never d isclosed du ring discov ery nor in accordance with the court s scheduling order? 6 called by the appellee , Daniel M cNeill (McNeill or the appellee), on that basis. An in banc panel of that court reversed that judgment. For the reasons that follow, we shall affirm the in banc panel. I. Beginning in September 2000, the appellee was employed by the appellan t, Food Lion (Food Lion or the appellant), as a meat cutter. His duties included cutting large pieces of meat, handling a nd wrap ping trays of m eat, and operating a meat grinder. In the fall of 2001, McN eill began experiencing pain and numbness in his hand s and pain radiating fro m his elbows. He consulted a doctor in connection with this condition, who subsequently diagnosed it as bilateral carpal tunnel syndrome and right cubital tunnel syndrome. Dr. Fulton was that doctor. McNeill filed a claim with the W orkers Compe nsation Comm ission (the Commission). He allege d that his carpal tunnel and cub ital tunnel syndromes were occupational diseases7 caused by his job duties as meat cutter. Following a hearing, the Commission denied the claim, finding that the appellee s condition did not arise out of and in the course of employment. McNeill sought judicial review of this decision in the Circu it 7 Maryland Code (1991, 1999 Repl. Vol., 2005 Supp.) § 9-101 of the Labor and Employment Article provides: (g) Occupational disease" means a disease contracted by a covered employee: (1) as the result of and in the course of employment; and (2) that cau ses the cov ered emp loyee to becom e tempora rily or perm anently, p artially or to tally incap acitated . 7 Court for Anne Arundel County, pursuant to Maryland Code § 9-737 of the Labor and Employment Article.8 The Circuit Co urt, in preparation for trial, issued a scheduling order prescribing when discovery materials were required to be submitted. With regard to expert witnesses, the Order provided: the Proponents not later than February 4, 2003 and the opponents, than March 4, 2003 shall furnish to opposing counsel the names and ad dresses of all expert witnesses and such other information regarding expert witnesses as is required by the Maryland Rules of Procedure, Sec. 2-402(e)(1). [9] Expert testimony not 8 Section 9-737 provides: An employer, covered employee, dependent of a covered employee, or any other interested person aggrieved by a decision of the Commission, including the Subsequent Injury Fund and the Uninsured Employers' Fund, may appea l from the d ecision of th e Comm ission provid ed the app eal is filed with in 30 days a fter t he date o f the mail ing o f the Com miss ion's orde r by: (1) filing a p etition for jud icial review in accordan ce with Title 7 of the Maryland Rules; (2) attaching to or including in the petition a certificate of service verifying that on the date of the filing a copy of the petition has been sent by first class mail to the Commission and to each other party of record; and (3) on the date of the filing, serving copies of the petition by first class mail on the Commission and each other party of record . 9 The scheduling order in this case was entered prior to the adoption of the Rules Order dated November 12, 2003 resulting in present Rule 2-403 (f) (1) (A). When the scheduling order in this case w as entered, the applicable R ule was Rule 2 -402 (e) (1), which provided: (e) Trial Preparation--Experts. (1) Expected to Be Called at Trial. Discovery of findings and opinions of experts, otherwise discoverable under the provisions of section (a) of this Rule and acquired or developed in anticipation of litigation or for trial, may be 8 so iden tified sh all be ina dmissib le at trial ex cept fo r good cause s hown . The Order also required that any motions [f]or summary judgment or other dispositive motion s shall be filed no later than Marc h 20, 20 03. During the discovery process and prior to the deadline, Food Lion sent McN eill a series of interr ogatories, inte rrogatory num ber two o f which a sked him to: Identify each perso n whom you expect to call as an ex pert witnes s at trial, state the subject m atter on wh ich the exp ert is expected to testify, state the substance of the findings and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and attach to your answers any written report made by the expert concerning those findings and opinions. McN eill answered by listing the name of Dr. Fulton and his address. In addition, he advised: a copy of Dr. Fulton s reports are attached. Dr. Fulton will testify as to the con tents of his medical reports, and the causal relationship o f the Claim ant s Carp al Tunne l Syndrome to his employment. Further records from North Arun del Ho spital w ill be sup pleme nted. The obtained without the showing required under section (c) of this Rule only as follows: (A) A party by interrogatories may require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject ma tter on wh ich the exp ert is expecte d to testify, to state the substance of the findings and the opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and to produce any written report made by the expert c oncerning those findin gs and op inions; (B) a party may obtain further discovery, by deposition or otherwise, of the finding s and opin ions to wh ich an exp ert is expecte d to testify at trial, including any written reports made by the expert c oncern ing tho se find ings an d opini ons. 9 appellee also attached the medic al reports and Dr. Fulton s notes regard ing the appellee s follow-up appointments. Subsequently, the appellee forwarded to the appellan t s counsel a letter, dated April 4, 2002, from Dr. Fulton, which, in its entirety, stated: It is my opinion that Mr. McNeill s carpal tunnel and ulnar cubital tunnel problems are directly and c ausily [sic] rela ted from his repe titive wo rk as a m eat cutte r at Foo d Lion . Although the appellant noted the deposition of Dr. Fulton s custodian of records and obtained additional records from Dr. Fulton s o ffice, at no time, before or after the expiration of the discove ry deadline did it challenge the adequ acy or the sufficiency of the appellee s response to interrogatory number two. Certainly, the appellant did not file a m otion to comp el. Nor d id the ap pellant m ove fo r summ ary judgm ent. On the day of trial, the appellant made an oral motion to prohibit Dr. Fulton from testifying as to the causation betw een the ap pellee s con ditions and h is employme nt. 10 Noting Rule 2-402 s requirement that disclosure of an expert s opinion mu st include the summa ry of the groun ds of that op inion, it main tained that D r. Fulton s o ne sentenc e letter ... simply stating that the claimant s condition was causally related to his work was deficient in that regard. The appellant argued: If you look at Dr. Fulton s opinio n on causal relationship, you w ill see that s exactly what it is. It is a simple opinion stating his conditions related to his 10 Although the transcript indicates that counsel for Food Lion made an oral motion to exclude the testimony of Dr. Fulton, the record reflects that she also filed on the morning of trial Food Lion Inc. s Memorandum in Support of Motion to Exclude the Expe rt Testim ony of D r. E.C. F ulton an d Attac hmen ts. 10 work as a meat cutter. Period. There is no basis. There is no discussion of the claimant s sp ecific job du ties. There is no discussion of duration of time that he worked there. There is no disc ussion of the e nviron ment o f his job . There is no discussion of the onset of his symptoms, when he first noticed them. There is no discussion of ruling out a ny of the other many factors for develo ping ca rpal tun nel syndr ome. In short, he do esn t provid e [in his report] a factual basis for why he believes the opinion that he rendered. The o nly thing he offers in one medical repo rt is what the claimant notes to be his sympto ms and th at he notes th at his symptoms are wo rse at the end of the wo rkday. Noting the claimant s opinion is not su fficien t to carry the expert s opinio n. Relying on Giant Food v. Booker, 152 Md. App. 166, 188, 831 A. 2d 481, 493 (2003), the appellant submitted that Dr. Fulton was render[ing] an opinion of the type where [the expert] opine[s] it is so because I say so. It concluded that, because no summary of the grounds for the causation opinion was given and discovery was closed, Dr. Fulton should not be permitted to: [c]ome in now and pro vide ad ditional bases f or [his c ausatio n] opin ion .... All of his opin ion have b een prov ided and it w ould be unfair to render a new opinion or an additional basis for those opinions, which my expert would not have an opportunity to rebut or refute. McN eill rejoined that Food Lion s motion was untimely. Charactering the motion as coming within the orders that the PRETRIAL ORDER required to be filed 20 days prior to the scheduled trial date,11 he noted what he considered to be an inconsistency in the 11 The scheduling order set a Pre-trial and Settlement Conference. At the conclusion of that conference, the hearing judge passed a PRETRIAL ORDER, signed by both counsel, a provision of which, paragraph 9, provided: 9 Motions In Limine, Preliminary Motions and/or Pretrial Memoranda Any Motions In Limine, preliminary Motions or Pretrial Memoranda must 11 approach taken by Food Lion: As you know, the motion to exclude the testimony of Dr. Fulton was filed this morning. The defense counsel w ould like for you to rely on the pretrial order when it comes to the closing of discovery, but wants you to okay the fact that a motion to exclude the testimony of Dr. Fulton is sufficient to be filed toda y, as opp osed to 20 days b efore th e trial date . The appellee also argued that it would be improper to exclude Dr. Fulton s testimony based on this particular pretrial motion, drawing a distinction between an evidentiary ruling made by the court pursuant to Rule 5-702 after hearing Dr. Fulton s testimony and the reasons for his causa tion opin ion, a nd one premised on in suff icien t disc overy. The Circuit Court rejected the appellee s arguments and using a Rule 5-702 analysis, granted Food Lion s motion to preclude the appellee s ex pert from testifying as to the ba sis of his medical opinions. At the conclusion of the a ppellee s case,12 the court granted Food be filed no later t han tw enty days p rior to the schedu led trial d ate. 12 Although the trial court indicated that it was going to grant the appellant s motion to preclude plaintiff exp ert testimony as to causation, it co nceded th at the appelle e could call his witness and attempt to elicit his opinions, if you want to go through that exercis e. It ma de clea r, how ever, I am positive that I would find that he had to state medical reasons, which w ere the basis o f his opinio n. And w hen that ha ppened, I w ould have to p reclu de th at tes timo ny, be caus e it w as no t given over in dis covery. So we can go through that exercise, if you want to. And I am trying to make the record very clear. I am not saying you cannot put your witness on . You can put your witn ess on for th ose purpo ses. But there is no question u nder the case law, especia lly the one that s he ci ted u s tod ay that is almost the predicament they were in there. They got through steps one and two, basically, but couldn t get through step three. And so I guess retroactively they had to exclude the testimony in that case. I mea n, we c an all do that, if tha t is wha t you cho ose. The court sustained every objection that Food Lion made to questions that would have 12 Lion s motion for judgment, concluding that the one sentence report from Dr. Fulton would not be adequate for you to sustain your burden of proof in this case. There is no medical conclusion. McN eill, rather than note an appeal to the Court of Special Appeals, opted for review of the judgment by an in banc panel of the Circuit Court. That panel reversed the judgment of the trial court, holding that the trial court s exclusion of the appellee s expert s testimony on causation was clearly erroneous.13 It reasoned: While it was very brief , the report [o f Dr. Fulto n] was su fficient to inform any reader that the medical expert based his opinion, in part, upon P etitioner s repetitive work as a meat cutter and it is logical to assume that he refers to the repetitive arm motion that would reason ably be ex pected of a m eat cutte r. Dr. Fulton had indica ted the caus al connec tion betwe en the allege d disability (carpal tunnel and cubital tunnel) and the event which caused it (Petitioner s repetitiv e work as a me at cutter a t Food Lion). Significan tly, the panel obse rved, as w ell, that elicited testimony as to causation. 13 Two issues were presented to the in banc panel: whether the filing of Respondent s Motion to Exclude Testimony of Dr. Edwin Fulton violated the Pre-Trial Order of the C ourt and Wh ether the Trial Court erred in g ranting the Respon dent s Motion to exclude Expert Testimony of Dr. Edwin Fulton. The in banc panel resolved the appea l by addressing the second issue, thus fin ding it unne cessary to reach the first, the pro cedura l, issue. It d id obse rve, how ever, The Pre-Trial Order clearly provided that all preliminary motions and motions in limine be filed at least 20 days prior to the trial date. The reasons for the requirement were developed over a period of time with input from the Bar and upon the experience of the Court. In this case, Respondent presented the Motion on the morning of trial, which took a significant amount of time and energy to resolve. The Pre-Trial Order was intende d, in par t, to avoid such an occurr ence. 13 Respondent did not object to Petitioner s Answer to Interrogatories, did not file a Mo tion to C ompe l, and did no t take Dr. Fulton s depo sition. In addition, the same in formation had prev iously been pr esented to the [Workers Com pensat ion] Co mmiss ion, of w hich R espon dent w as awa re. The panel also rejected the trial court s and Food Lion s reliance on Booker, concluding that Dr. Fulton s was n ot an opinion wh ere an expert opined that a matter was so just because he said it was so. It relied, in that regard, on Dr. Fulton s testimony at trial, without objection, to th e diagnos tic tests McN eill had taken and that the y confirmed his diagnosis. In addition, the panel observed that the discovery responses of the appellee made clear that he would be relying on Dr. Fulton s testimony to explain his reports and the causal conne ction be tween his con dition an d his em ploymen t. Food Lion timely noted an appeal to the Court of Special Appeals. On our own motion and prior to p roceed ings in th at court, t his Co urt gran ted certio rari. Food Lion v. McN eill, 380 Md. 23 2, 844 A.2d 42 8 (2004). 14 14 Food Lion, the appellant, prevailed at trial in the Circuit Court for Anne Arundel County. Rather than noting an appeal to the Court of Special Appeals, the appellee, Daniel McNeill, sought in banc review in that court, pursuant to Maryland Constitution, Article IV, § 22; Rule 2-551 (a) and (b). Being aggrieved by the decision of the in banc panel, wh ich reversed the judgm ent of the trial c ourt, Food Lion note d a timely appe al to the Court of Special Appeals, pursuant to Rule 2-551 (h), which, by its express terms permits an appeal from the decision of an in banc panel to that court. That is in direct contrast with the Maryland Constitution, Article IV, Section 22, which, while making clear that an in banc dec ision is con clusive as ag ainst the party at w hose mo tion said points, or qu estions we re reserved , states that it sha ll not preclud e the right of Appea l, or writ of error of the adverse party, in those cases, civil or criminal, in which appeal, or writ of error to the Cou rt of App eals may be a llowed by law. ( emph asis add ed). Subsequently, we filed our opinion in Bienkowski v. Brooks, 386 Md. 516, 873 A.2d 1122 (2005). In that op inion, noting the clear and un ambiguous use of the words C ourt 14 of Appeals, in the Constitutional provision and interpreting that use as a clear indication that uns uccess ful app ellees m ay appea l only to the Court o f App eals, id. at 543-544, 873 A.2d at 1138, this Court held that the Court of Special Appeals does not have jurisdiction to hear a ppeals from in banc p anels. Id. at 544, 873 A.2d at 11 38. Explic ating this holding, we said: Under the only reasonable interpretation of Article IV, § 22, in light of the present statutory provisions governing the Court of Appeals' jurisdiction, an appellee in th e court in ba nc, after an a ppealable ju dgment b y the court in banc, is entitled to file in the Court of Appeals a petition for a writ of certiorari pursuant to the current statutory provisions and rules governing certiorari petitions and certiorari practice in the Court of Appeals. The Court of Appeals will consider such certiorari petitions in the same manner in which it considers other certiorari petitions, and will either deny them or grant them . As with o ther certiorari p etitions, the Co urt of Ap peals, if it decides to grant a petition for review of an in banc decision, may limit the issues which it will consider or may add issues to those presented by the petition er. Id. at 549, 873 A.2d at 1141. We also addressed the situation presented by this case. In Bienkowski, the appellee in the in banc appeal, timely noted an appeal to the Court of Special Appeals and the app ellant su bsequ ently filed a petition for cert iorari, w hich this Court g ranted. 376 Md. 49, 827 A.2d 112 (2003). Relying on Shell Oil Co. v. Supervisor, 276 Md. 36, 4950, 343 A.2d 521, 529 (1975) for the proposition, Under settled Maryland law, if a case is timely filed in a Maryland court which is not authorized to exercise jurisdiction over the merits of the case, but if another Maryland court is authorized to exercise jurisdiction, the former court may transfer the case to the court which can properly exercise jurisdiction, Bienkowski, 386 M d. at 550 , 873 A .2d at 11 42, citing Maryland Rule 8132, perm itting transfer o f timely filed, but im properly taken appeals to th e appellate court apparently having jurisdiction and noting that [t]he Court of Appeals treats the notices of appeal [in transferred cases] as if they were certiorari petitions, although these litigants are given an opportunity to file supplements to the petitions if they so desire. The cases are then dealt with in the same manner as all other certiorari petitions, Id. at 552, 873 A.2 d 1143, the Court con cluded tha t the merits of that case w ere proper ly before it. This case is similarly properly in th is Court. A lthough the appellant s a ppeal to the Court of Special Appeals was improper, it was timely. Moreover, while it was pending in the Co urt of Special App eals, but before proceed ings in that court, this Court issued, o n its ow n motio n, a writ of certio rari. 15 II. Maryland Rule 5-702, w hich codified the mo dern commo n-law rule regarding ex pert testim ony, see Sippio v. S tate, 350 Md. 633, 649, 714 A.2d 864, 872 (1998), guides our resolution of this c ase. Th at rule go verns th e adm issibility of e xpert tes timony, see Bryant v. State, 393 Md. 196, 900 A.2d 227 (2006), and describes the basic standard to be applied when the inquiry is into its ad miss ibility. State v. Smullen, 380 Md. 233, 269, 844 A.2d 429, 450 (2004). Pu rsuant to that Rule, the trial court must determine, before admitting expert testim ony, that: the witness is qualified, by knowledge, skill, experience , training, or education to testify as an expert; the matter about which the witness would testify is an appropriate one for su ch testimon y; and there is a sufficient f actual basis to support the witness s expert te stimon y. See Sippio, 350 Md. at 649, 714 A.2 d at 872; Simmo ns v. State, 313 Md. 33 , 41-42, 542 A.2d 1258, 1262 (19 88). Only one of the required determinations is at issu e and in pla y in this case, the last, the determination of the sufficiency of the factual basis for the expert s conclusion on causation and, as presented, it requires the assessment of the accuracy of that determination. Food Lion candidly concedes that it challenges neither the qualifications of the appellee s expert nor the amenability or suitability of the operative issue to explication by expert testim ony. [T]he primary thrust of [its] challeng e is that Dr. Fulton s opinion, as provided and disclosed during discovery, lacked a sufficient basis and that it fails the test of the third prong of Rule 5-702 and is thus subject to exclusion. Food Lion maintains, in other words, 16 that, when mak ing the factual basis determ ination, as a preliminary matter, whether or not sufficiency has been challenged, a trial court may, indeed, must, assess the adequacy of the affected party s responses to discover y requests. Imp licit in this position, therefore, is that there can be, and, in this case, there was, a substantial and not merely a technical violation of discovery, 15 which not only is noticeable, but is sanctionable, by application of the eviden ce rules . Food Lion has not directed our attention to any case that has directly endorsed the melding of the disco very and evid ence rules th at it advoc ates. Th e cases , on which it relies, Booker, 152 Md. App. 166, 831 A.2 d 481; Carter v. Shoppers Food Warehouse M D Corp., 126 Md. App. 147, 727 A.2d 958 (1999); Franch v. Ankney, 341 Md. 350, 670 A.2d 951 (1996), certainly do not do so. Nor does Wood v. Toyota Motor Corp., 134 Md. App. 512, 760 A.2d 315, cert. denied 362 Md. 189, 763 A.2d 735 (2000), on which Booker heavily relied. In each of those cases, Rule 5-702 was applied in its trad itional and u sual contex t, as an evidence rule providing the standard for the admission of evidence, not in conjunction with and/or in furtherance of the discovery process. 15 The appellant justifies the trial court s ruling to exclude the expert testimony on this basis. It denies, however, that it is the kind of violation that would trigger the need for it to object, take a deposition or move to compel. That is so, Food Lion explains, because it does not object to the form of the answer or the opinion provided, Rather, it has been and remains Food Lion s position that the opinion provided is legally insufficient in that it lacks a basis and that the basis was never provided in discovery. In sum, Food Lion simply wants to hold the Claimant to the discovery response as provided and to preclude anything more than was provided prior to trial. 17 In Booker, the issue bef ore the cou rt, as in this case, w as the suff iciency of the evidence of medic al causation to permit the trial court to submit the case to the jury on that issue. 152 Md. App. at 170, 831 A.2d at 483. Unlike in this case, however, that issue was not generated during disco very or resolved on the bas is of the witness s discovery responses. The ruling wh ose proprie ty was challen ged by the ap pellant and reviewed by the intermed iate appellate court was the trial court s denial of the appellant s motion for judgment notwithstanding the verd ict. Id. At 176, 831 a. 2d at 4 86. Thus, to be sure , the Court o f Special Appeals reversed the judgment of the trial court, concluding that the expert testimony regarding causation d id not rise above the leve l of me re spec ulation o r conjec ture, id. at 185, 831 A.2d at 492, bu t it did so on a f ull record, rath er than on th e basis of a response to discovery. See Franch, 341 Md. A t 361-65, 670 A . 2d at 956-58 (holding that trial court properly struck expert testimony after it had been presented to the jury when it became clear that the testimony was based o n an incorrect interpretation of the law . ). Wood presents a similar factual scenario. There, the trial court excluded the plaintiff s expert s opinion testimony, finding it to lack a suf ficient factu al basis and because the expert did not have the necessary qualifications, 134 Md. App. at 519, 760 A. 2d at 319, and the Court of Special Appeals affirmed. Id. at 523, 760 A. 2d at 321. Although the admissibility decision was made at a motion in limine, it was made on the basis of the expert s depo sition tes timony. Id. at 524, 7 60 A. 2 d at 322 . The dispute in Carter also turned o n wheth er a sufficie nt factual ba sis existed to 18 support the expert s testimony. 126 Md. App. at 156, 727 A.2d at 963. That dispute was resolved, not by reference to an interrogatory response, whose meaning or sufficiency was in issue, but, as in Wood, on the b asis of th e expe rt s testim ony at de position . Id. The intermediate appellate court affirmed the exclusion of the expert testimony, emphasizing the trial court s find ings that there [were] no scientific or professional standards to support [the expert s] conclusion, that the expert performed no scientific testing, the only testing done was to flip over the corner of the mat with his foot, he interviewed [appellant] for twen ty to th irty mi nute s, he insp ecte d [th e gro cery store] for fifteen minutes four and a half years after th e accident o ccurred, an d the mats inspected were made by a different company than [appellee] used at the time of the accident. Additionally, there is no law nor regulation governing the particular thickness of floor mats. Id. Moreover, the rule for which Food Lion advocate s is inconsistent with and, indeed, would likely undermine the discovery scheme established b y the discovery rule s and, in particular, Rules 2-402, 2-432, 2-433 and 2-504. That schem e contemplates full disclosure by all parties so as to avoid surprises and to facilitate and advanc[e] the sound and expeditious administration of justice. Mezza notti, 227 Md. at 13, 17 4 A.2d at 771. It does so by requiring , in the first instance, broad and comprehensive disclosures, Rule 2-402 (a); Rule 2-50 4, in respon se to reques ts in the forms prescribed, Rule 2-401 (a), by providing a mechan ism for ad dressing dis putes con cerning th e necessity of complying with a disclosure 19 request and the adequ acy of an y challeng ed disc losure, R ules 2-403 (a), 16 2-43217 ; 2-504, 16 Rule 2-403 (a) provides: (a) Motion. On motion of a party or of a person from whom discovery is sought, and for good cause shown, the court may enter any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had, (2) that the discovery not be had until other designated discovery has been completed, a pretrial conference has taken place, or some other event or proceeding has occurred, (3) that the discovery may be had only on specified terms and conditions, including an allocation of the expen ses or a desig nation of th e time or plac e, (4) that the dis covery may be had only by a method of discovery other than that selected by the party seeking discovery, (5) that certain matte rs not be inq uired into or th at the scope of the disco very be limited to certain matters, (6) that discovery be conducted with no one present except persons designated by the court, (7) th at a depositio n, after being sealed, be o pened on ly by order of the c ourt, (8) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way, (9) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opene d as dire cted by th e court. 17 Rule 2-43 2 addresse s Motio ns upon F ailure to Prov ide Disco very. As relev ant, it provides: (a) Immediate Sanc tions for Certain Failures of D iscovery. A discovering party may move for sanctions under Rule 2-433 (a), without first obtaining an order compelling discovery under section (b) of this Rule, if a party or any officer, director, or managing agent of a party or a person designated under Rule 2-41 2 (d) to testify on behalf of a party, fails to appear be fore the officer who is to take that person's deposition, after proper notice, or if a party fails to serve a response to interrogatories under Rule 2-421 or to a request for production or inspection under Rule 2-422, after proper service. Any such failure may not b e excused on the g round that the discovery sought is objectionable unless a protective order has been obtained under Rule 2-403. (b) For Order Co mpelling Discove ry. (1) When A vailable. A discov ering party, upo n reasona ble notice to other parties and all persons affected, may move for an order co mpelling d iscovery if (A) there is a failure of discovery as described in section (a) of this Rule, (B) a deponent fails to answer a question asked 20 and, where required, by prescribing sanctions to be imposed when a party fails to co mply, either by not responding at all or responding inadequately. Rule 2-433. The scheduling order, prov ided for by R ule 2-504 , sets out the perimeters of the discovery process, pre scribing the tim e limits for responding to discovery requests and, ultim ately, for completing the discovery process itself. Anticipating that the parties may not always compl y with discovery requests, that there may be complete noncompliance, by failing to respond, or disputes as to the p ropriety or extent of the disclosure sought o r required, Rules 2-403 and 2-432 provide a procedure and a mechanism whereby the compliance issues and disputes may be, and sh ould be , resolve d. And the rules recognize the need for there to be sanctions; without sanctions, compliance with the discovery rules could not be enforced and, thus, certainly could not be assured. Moreover, sanctions are necessary to insure that a non-complying or defaulting party, does not benefit from that party s default or non-compliance. Thus, when the trial court determines that a party has in an oral or written deposition, (C) a corporation or other entity fails to make a designation under R ule 2-412 (d), (D) a party fails to answer an in terrogatory submitted under Rule 2-421, (E) a party fails to comply with a request for production or inspection under Rule 2-422, (F) a party fails to supplement a response under Rule 2-401 (d), or (G) a nonparty deponent fails to produce tangible evidence without having filed written objectio n unde r Rule 2 -510 (f ). 21 failed to com ply with d iscove ry reques ts, it may order: that the subjects of the discov ery requests be taken as established for the purpose of the action, Rule 2-433 (a), that the defaulting party not be permitted to support or oppose claims or defenses, or introduce certain evidence, Rule 2-433 (b), that proceedings be stayed and/or pleadings or parts of pleadings stricken or stayed, until discovery is provided, or that the action, or a part, be dismiss ed or a ju dgme nt by def ault be e ntered. R ule 2-4 33 (c). The result that the ap pellant wa s able to achieve by melding the discovery rules and the evidence rules wa s achievable by application of the discovery rules alone. Discovery violations are cognizable by the trial court during the discovery process and, of course, are sanctionab le when they are found. And, as we ha ve seen, the re are mec hanisms in place for that to happen. It follows that discovery issues are best handled during the discovery period; that serves the interest of efficient trial administration. If, therefore, a s the appellant maintains, the appellee s expert s report was a violation of discovery, and a substantial one, at that, it should have been, and could have been, addressed during the discovery process and, if determ ined to h ave be en one , sanctio ned as s uch. It is well-settled, moreover, that an expert's opinion has no probative force unless a suffici ent bas is to sup port a ra tional co nclusio n is sho wn. State ex rel. Stickley v. Critzer, 230 Md. 2 86, 290 , 186 A .2d 586 , 588 (1 962). See Beatty v. Trailmaster Products, Inc., 330 Md. 726, 741-42, 625 A.2d 1005, 1012-13 (1993); Bohne rt v. State, 312 Md. 266, 275, 539 A.2d 65 7 (1988); Surkovich v. Doub, 258 Md. 263, 272, 265 A.2d 447, 451 (197 0); State 22 Health Dep't v. Walker, 238 Md. 512, 520, 209 A.2d 555 (1965). But that determination -whether there is a sufficient factual predicate for the expert opinion - is not one to be made by the expert whose opinion is at issue or by any of th e parties, includ ing the party challenging the expert opinion; rather, it is a determination that must be made by the trial court, Rollins v. S tate, 392 M d. 455, 499 -500, 897 A.2d 82 1, 847 (20 06); In re Adoptio n/Guard ianship No. CCJ14746, 360 M d. 634, 647 , 759 A.2d 755, 762 (2000), in whose discretion the determination of expert testim ony is entruste d. Buxton v. Buxton, 363 Md. 6 34, 650 -51, 77 0 A.2d 152, 16 1-62 (2 001). The appellant su bmits that, bec ause it did not object to the form of the answer that the appellee gave to its discovery request and wanted only to test the sufficiency of the basis of the appellee s expert s opinion, as of that time, it was under no obligation to challenge the appellee s answer, or take the appellee s expert s deposition, notwithstanding his belief that the appellee had violated discovery, as the trial court necessarily found. If the appe llant is correct, an element of surprise, albeit not from the perspective of the requestor, but from the perspective of the discloser, will be introduced in the process. Suddenly, we will have returned to the time when non-disclosure was th e order of the day and disclosure was not encouraged and when d iscovery was an obstac le cours e. Hallman v. Gross, 190 Md. at 574, 59 A.2d at 308. A p arty who an swers a d iscovery requ est timely and does not receive any indication from the other party that the answers are inadequa te or otherw ise deficient s hould be able to rely, for discovery purposes, on the absence of a challenge as an indication that 23 those answers are in compliance, and, thus not later subject to challenge as inadequate and deficient when o ffered at trial. See Franch, 341 Md. at 365, 670 A.2d at 958 (noting that the appellees were on notice as to the appellant s challenge to the admissibility of the testimony of the experts, which later w as stricken). JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY, IN BANC, AFFIRMED, WITH COSTS. 24
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