Countering A Plaintiff’s Counsel’s Minimal Expert Witness Disclosures in Lead Paint Litigation

In the Jamal Logan v. LSP Marketing Corp., et al., the Court of Special Appeals upheld the trial court's granting of an order in a lead paint case precluding all but one of plaintiff's 12 experts as a sanction for failure to comply with Md. Rule 2-402(g) (i.e. failing "to state the subject matter, substance of the findings/opinions, and summary of grounds for each opinion; and produce any reports, to which the expert is expected to testify.")

Defendant's interrogatories requested information as to Plaintiff's experts. When Plaintiff did not respond to the interrogatories within the time prescribed, defense counsel made a good faith effort to resolve the dispute. Plaintiff's counsel eventually submitted its answers to interrogatories, but failed to provide any substantive information. Not having received sufficient or satisfactory information, Defendant moved to dismiss/compel. The Court compelled Plaintiffs to supplement their responses, but Plaintiff's counsel again responded vaguely and did not produce any reports. Consequently, Defendant moved for sanctions to exclude the experts or dismiss. The Court precluded all but one expert. As a result, Plaintiff was unable to put on a prima facie case resulting in the Court granting Defendants motion for summary judgment.

This opinion reiterates the expert designation requirement, specifically,

Plaintiff's answers to interrogatories did not comply with 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 Mark Lieberman as a vocational rehabilitation 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 Lieberman would "base his opinions on a review of the medical records, school records, other expert reports and depositions," Plaintiff did not state how Lieberman believed his earning capacity would be affected. In addition, Plaintiff listed 12 individuals, 10 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." These answers failed to disclose, however, what each expert would opine as to the extent and permanency of the injuries, which might range from 0{ae673c0578537ac673c9bacf7e54c8adb105b1f3845655c2906dcf184a4e074c} to 100{ae673c0578537ac673c9bacf7e54c8adb105b1f3845655c2906dcf184a4e074c}. 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 the probable source was, 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, 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." But none were provided. "Based upon Plaintiff's "boilerplate" expert designations, it was reasonable for the court to infer that the excluded experts' testimonies would be duplicative of Dr. Hurwitz's" (the only properly designated expert).

Also, noteworthy, the Plaintiff argued as a defense that Defendants could have taken the experts' depositions. However, since 10 experts were out of state the Court emphasized the importance of Plaintiff's compliance with Md. Rule 2-402(g) to provide a proper designation so that the Defendant did not have to unnecessarily incur the costs associated with depositions.