Kleban v. Eghrari-Sabet

• Citation: 920 A.2d 606,174 Md. App. 60
• Decision Date: 06 April 2007
• Docket Number: No. 1018, Sept. Term, 2006.,1018, Sept. Term, 2006.
• Parties: Dennis G. KLEBAN et al. v. Jacqueline S. EGHRARI-SABET et al.
• Court: Court of Special Appeals of Maryland

920 A.2d 606

174 Md. App. 60

Dennis G. KLEBAN et al. v. Jacqueline S. EGHRARI-SABET et al.

No. 1018, Sept. Term, 2006.

Court of Special Appeals of Maryland.

April 6, 2007.

Allyson B. Baker (Michael D. Hausfeld, Richard A. Koffman on the brief), Washington, DC, for appellant.

Deanna L. Peters and Jeffrey M. Schwaber of Rockville, for appellee.

Argued before DAVIS, BARBERA and MEREDITH, JJ.

DAVIS, J.

On February 17, 2006, at the conclusion of a five-day jury trial in the Circuit Court for Montgomery County, Maryland, the jury returned a verdict for appellants Dennis G. Kleban, M.D. and Dennis G. Kleban, M.D., P.A. (Dr. Kleban) on their breach of contract claim, awarding him $75,000 and found against appellees Jacqueline S. Eghrari-Sabet, M.D. and Jacqueline S. Eghrari-Sabet, M.D., P.C. (Dr. Eghrari)¹ on the counterclaim. The circuit court excluded the testimony of appellants' damages expert.

On March 2, 2006, appellees moved for a judgment notwithstanding the verdict, or in the alternative, a revision of the judgment. On March 9, 2006, appellants moved for a partial new trial as to damages, which the circuit court denied in its order dated August 10, 2006. The circuit court denied appellees' motion for judgment notwithstanding the verdict, but granted appellees' motion to revise the jury verdict in an order dated June 1, 2006. The circuit court reduced the jury's damages award from $75,000 to $1.

The circuit court had entered a judgment in appellants' favor for $75,000 on February 27, 2006 and subsequently entered a revised judgment, reducing appellants' damages award to $1 on June 8, 2006. Appellants sought a motion for a partial new trial as to damages because the circuit court granted appellees' motion to strike the opinion of appellants' damages expert regarding future lost income and because the circuit court also granted appellees' motion to strike the remaining portion of the testimony of appellants' damages expert on grounds that it was not based on a sufficient factual predicate. Appellants appeal from both circuit court orders—the portion of the June 1 Order reducing appellants' damages award from $75,000 to $1 and the August 10 Order denying appellants a partial new trial as to damages, raising the following questions for our review:

1. Did the [c]ircuit [c]ourt rule incorrectly and improperly invade the province of the jury by revising the jury's award of $75,000 on [appellants'] breach of contract claim to $1?

2. Did the [c]ircuit [c]ourt abuse its discretion by denying [appellants'] Motion for a Partial New Trial as to Damages, which was necessitated by the [c]ircuit [c]ourt's erroneous decision to preclude [appellants'] damages expert from testifying?

FACTS AND LEGAL PROCEEDINGS

In 1975, Dr. Kleban, through his corporation, Dennis Kleban, M.D., P.A., founded a medical practice specializing in treating patients with allergies. For almost twenty years, Dr. Kleban maintained a sole practice managing all aspects of his business until March 2005 in Montgomery Village, Maryland. In 1995, Dr. Kleban hired Dr. Eghrari.

In January 2001, Dr. Kleban and Dr. Eghrari entered into an agreement which established a joint practice (the Practice) and in which it was agreed, among other things, that Dr. Eghrari would assume management oversight of the practice on behalf of both of them and that Dr. Kleban would continue to treat patients until he chose to retire or died or was declared mentally incompetent.

The Agreement further provided that Dr. Eghrari would (a) acquire the lease to Dr. Kleban's primary office in Montgomery Village, (b) oversee the daily management and operations of the joint practice for both of them, (c) hire office staff for both of them and (d) oversee payment of all overhead costs, including staff salaries and insurance costs attributable to both of them. The Agreement also provided that, going forward, Dr. Eghrari and Dr. Kleban would receive income in proportion to their respective productivity. The parties would also pay overhead expenses in proportion to their respective incomes. The Agreement also provided for a scenario in the event that either party elected to leave the shared practice. On April 19, 2004, Dr. Eghrari "terminat[ed][the] practice relationship" effective October 31, 2004 and subsequently Dr. Kleban discontinued his practice as of March 17, 2005 and began to practice again in August 2005.

The parties' relationship deteriorated and, as a result, Dr. Kleban filed a complaint in the Circuit Court for Montgomery County on November 9, 2004 for, among other things, breach of the 2001 Agreement. The circuit court issued a scheduling order dated the same day, indicating that appellants' experts should be identified and notification filed by April 8, 2005; the court amended that date to June 1, 2005 by order on March 24, 2005.²

On June 1, 2005, in accordance with the amended scheduling order, appellants designated Charlotte L. Kohler (Kohler) as a testifying expert and stated that she would render the following opinion regarding the damages appellants incurred from appellees' breach of the 2001 Agreement:

Ms. Kohler will opine in this case as to the following: (i) the value of services that [appellees] Jacqueline S. Eghrari-Sabet, M.D. and her professional corporation, Jacqueline S. Eghrari-Sabet, M.D., P.C. (collectively, "Dr. Eghrari") were to provide to Dr. Kleban pursuant to the January 1, 2001 agreement between the parties (the "Agreement"); (ii) the income and proper expenses of the practice, and, thus, the amount of compensation that was properly due to Dr. Kleban pursuant to the Agreement during the years 2001 through 2004; and (iii) the value of the income that [appellees] diverted from [appellants] to a junior doctor and ancillary medical personnel. Ms. Kohler expects to present a reconciliation of the practice's books as compared to the compensation that was actually paid to [appellants] and that which was actually due to [appellants] under the Agreement.

On September 2, 2005, appellees served interrogatories on appellants who answered on October 6, 2005 in the following manner as to interrogatory number twenty-four:

INTERROGATORY NO. 24:

Identify all experts whom you expect to call as expert witnesses at trial, and state the subject matter(s) on which such experts are expected to testify, the substance of the findings and opinions to which the experts are expected to testify, and the summary of the grounds for each opinion. Attach to your Answers copies of all written reports made by such experts.

RESPONSE TO INTERROGATORY NO. 24:

In addition to the foregoing objections, Dr. Kleban objects to Interrogatory No. 24 as unduly burdensome and duplicative to the extent it seeks information already provided to Dr. Eghrari. Subject to and without waiving the foregoing objections, Dr. Kleban refers to [appellants'] Expert Disclosure previously filed and served.

On December 7, 2005, Kohler produced an eighty—page expert report and exhibits, detailing the entire scope of appellants' damages to which Kohler intended to testify at trial. On December 14, 2005, appellees' counsel deposed Kohler. Following the deposition, on December 23, 2005, appellees filed a Motion to Strike appellants' expert alleging that appellants failed to timely designate any expert on the matter of future lost wages. On February 10, 2006, appellees moved to strike the portion of Kohler's intended expert testimony relating to future lost income analysis.

On February 13, 2006, the jury trial, which lasted five days, commenced. After jury selection, the trial court heard arguments on the parties' motions in limine. The trial court granted part of appellees' motions to strike Kohler's testimony, finding that the court would not "exclude [Kohler] in her entirety, but she may not testify to those matters that were essentially in the supplement, which the [c]ourt finds to be above and beyond what the put [sic] the defendant, or [appellants] put the [appellees] on notice that they would testify to." In ruling on the motion to strike, the court reasoned:

The issue here is a simple one. It is not an evidentiary question; it's a procedural question whether in fact you designate an expert and notify the other side what that expert witness is going to testify to, the other side has a right to rely upon that.

* * *

What the [appellees] are saying, but we didn't know that she was going to testify about future damages, lost wages out into the future. Had we known that, we would have done some other things with our expert. The answer is not whether or not there was evidence by the answers to interrogatories or in deposition that this was an issue that was out there.

* * *

Clearly the doctor himself will testify in this case, I'm virtually assured of that, and he can certainly testify to what his losses are, what his losses will be. That could have been an alternative in this case, and there may not have been a necessity for an expert.

And so whether [appellees] made that as a trial strategy or not is really not before this Court. They were not required to be prepared for any and everything that an expert might possibly say after it had been made very clear to what the expert would say.

Now, they're not asking that the expert be excluded in her entirety, and she will not be, but just that she will not be permitted to testify regarding that portion of her opinion that involves future wages.

Counsel says they subpoenaed documents that she had, and that once a subpoena was issued that it was improper to destroy those documents. Well, we don't really have to reach that issue, since the Court will not permit the testimony that goes beyond what she was originally designated to testify to.

Thus, as a result of the court's ruling, Kohler would not be permitted to testify about appellants' future lost wages, but she would be permitted to testify as to her opinions regarding the other types of...