In its unreported opinion dated September 28, 2021, the Court of Special Appeals of Maryland (“Maryland Appellate Court”) stated in a case where the Maryland medical malpractice plaintiff failed to provide timely and adequate discovery responses pursuant to the original and amended scheduling orders, “In light of the history of the case, the circuit court’s decision to dismiss appellant’s case was not an abuse of discretion.”
In 2015, the plaintiff (“appellant”) was experiencing anorectal health issues. He consulted with several colorectal surgeons, including Dr. Zalucki, who was employed by Colon Rectal Surgical Associates. In 2015, Dr. Zalucki performed a surgical procedure to alleviate the condition.
Appellant asserted that the procedure was not performed properly, causing permanent injuries, emotional and physical pain and suffering, past and future medical expenses, lost income, and other economic damages.
On September 1, 2017, appellant filed a claim in the Health Care Alternative Dispute Resolution Office (“HCADRO”) alleging medical malpractice against appellees and Howard County General Hospital. After the case was waived out of HCARDO, appellant filed his Maryland medical malpractice complaint in the circuit court on March 8, 2019. After repeated failures by appellant to respond to appellees’ requests for discovery and to schedule depositions, appellees filed a motion for sanctions. Appellant’s counsel took full responsibility for his client’s failure to comply with the scheduling order and indicated that he was searching for co-counsel. The circuit court granted the motion and, as a sanction, ordered appellant’s counsel to pay a portion of appellees’ attorneys’ fees. The circuit court also directed counsel to “collaborate on a discovery plan” and directed that the plan should be submitted to the court as a consent order “with language indicating that unexcused failure to comply . . . will result in an immediate hearing before the Court on sanctions.”
Appellant’s counsel failed to cooperate with appellees’ counsel regarding scheduling depositions for appellant and appellant’s designated expert witness. Appellant also did not timely respond to appellees’ requests for documentary discovery. As the Maryland Appellate Court stated in its opinion, “In short, appellant’s compliance with the new discovery deadlines was no better than his compliance with previous deadlines.”
On May 19, 2020, appellant’s counsel filed a motion to withdraw his appearance. The circuit court granted the motion, and appellant’s new counsel entered his appearance on June 19th. With the July 1st discovery deadline quickly approaching, appellant filed a motion to modify the scheduling order, which appellees opposed. On July 6th, the circuit court denied the motion.
Two weeks later, appellees filed a motion for sanctions seeking dismissal of the case. On September 9, 2020, the circuit court held a hearing on all outstanding motions and issued a memorandum opinion and order granting the motion for sanctions and dismissing the case with prejudice. The appellant filed an appeal.
Maryland Appellate Court Opinion
The Maryland Appellate Court stated: “appellant places the blame for his failure to comply with the discovery order on prior counsel’s shoulders. Appellees argue that appellant bears a significant share of the responsibility. These contentions miss the point—regardless of who was responsible, appellant’s failure to comply with the scheduling orders was fundamentally unfair to appellees and undermined the court’s ability to manage its caseload … The scheduling order in this case was modified twice to accommodate appellant’s failures to provide the information required by appellees’ discovery requests. The last modification was made on March 6, 2020. Between that date and July 1st, appellant’s efforts to comply with the order were, at best, minimal and certainly fell very far short of the “good faith and earnest effort . . . toward compliance” required for an additional extension … Under the facts of this case, it was well within the court’s discretion to deny the motion to modify.”
Source Cao v. Zalucki, M.D., No. 886 September Term, 2020.
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