Rodriguez v. Clarke

• Decision Date: 31 May 2007
• Docket Number: No. 102 Sept. Term, 2006.,102 Sept. Term, 2006.
• Citation: 926 A.2d 736,400 Md. 39
• Parties: Alejandro RODRIGUEZ, et al. v. James N. CLARKE, et al.
• Court: Court of Special Appeals of Maryland

926 A.2d 736

400 Md. 39

Alejandro RODRIGUEZ, et al. v. James N. CLARKE, et al.

No. 102 Sept. Term, 2006.

Court of Appeals of Maryland.

May 31, 2007.

Reconsideration Denied June 12 and July 24, 2007.

Michael J. Baxter (Siobhan R. Keenan of Baxter, Baker, Sidle, Conn & Jones, P.A. of Baltimore; David A. Levin and Michelle R. Callender of Wharton, Levin, Ehrmantraut & Klein of Annapolis), for petitioners.

Angus R. Everton (Mary Alane Downs of Morgan, Shelsby, Carlo, Downs & Everton, P.A. of Hunt Valley), for petitioners

James N. Clarke (Joan L. Dietrich), of Macungie, PA, for respondents.

Argued before Bell, C.J., Raker, Cathell, Harrell, Battaglia, Greene and Alan M. Wilner, (Retired, specially assigned), JJ.

BATTAGLIA, J.

In this medical malpractice action, Respondents, James N. Clarke and his wife, Joan Dietrich-Clarke (the "Clarkes"), sued Petitioners, Alejandro Rodriguez, M.D., Sharin F. Engineer, M.D., Central Maryland Urology Associates, P.A., and Howard County General Hospital,¹ in the Circuit Court for Howard County. Three years after the complaint was originally filed, and just two weeks before trial, the trial judge granted summary judgment to Petitioners. In concluding that judgment was appropriate as a matter of law, the judge determined that the Clarkes had failed to comply with multiple requests to arrange the deposition of their medical experts and that the Petitioners had been unable to depose any of those witnesses so that discovery had been thwarted. She concluded that the experts' testimony at trial would be barred, and without such testimony in support of their medical malpractice action, the Clarkes would be unable to sustain their burden of proof.

The Court of Special Appeals reversed the entry of summary judgment for Petitioners, who now present the following two questions for our review:

1. Whether a party may be permitted to violate Maryland Rule 2-402 in failing to appropriately identify expert witnesses because the lower trial court's scheduling order does not explicitly mandate that Rule 2-402 be followed.

2. Whether summary judgment should have been affirmed by the Court of Special Appeals given that the Court of Special Appeals identified a proper basis for summary judgment.

We granted certiorari, Rodriguez v. Clarke, 396 Md. 12, 912 A.2d 648 (2006), and shall reverse the decision of the Court of Special Appeals and hold that summary judgment was properly granted on behalf of the Petitioners.

I. Background

On October 23, 2001, James Clarke went to the emergency room of Howard County General Hospital, Inc., complaining of nausea, vomiting and a sharp right-sided abdominal pain. A CT scan² confirmed that Mr. Clarke was suffering from a kidney stone, and he was scheduled for surgery the next day by Alejandro Rodriguez, M.D., a urologist employed by Central Maryland Urology Associates, P.A. While waiting to be examined by Dr. Rodriguez, Mr. Clarke experienced crushing chest pains, prompting the attending physician to order an EKG,³ the results of which, Mr. Clarke was told, were normal.

During the morning of October 24, in preparation for the kidney stone procedure, Dr. Rodriguez ordered another EKG, which was interpreted by a cardiologist, George Steward Groman, M.D., a physician employed by HPV Heart, P.A. Later that same day, Dr. Rodriguez, as the attending urologist, performed the kidney stone procedure with the assistance of Dr. Sharin F. Engineer, an anesthesiologist, and the Hospital discharged Mr. Clarke a day later with directions to follow up with his primary care physician. On Christmas Day Mr. Clarke suffered a massive heart attack. He was initially taken to Saint Agnes Hospital, where the heart attack was confirmed, and then transferred to Union Memorial Hospital for by-pass surgery.

The Clarkes subsequently filed a complaint, through counsel, against Dr. Rodriguez and Central Maryland Urology Associates, P.A., Dr. Engineer and his partner, Dr. John C. Payne, and the Howard County General Hospital, Inc., with the Health Claims Arbitration Office. In the first count of their complaint, the Clarkes alleged that, in failing to notice that Mr. Clarke's EKG results were abnormal, the Petitioners breached the applicable standards of care in his treatment, which was the proximate cause of his massive heart attack, subsequent injuries, damages, and disability. In the second count of the complaint, the Clarkes also sued for loss of consortium.⁴ In addition to the complaint, the Clarkes also filed, through counsel, a certificate of discovery verifying that interrogatories, requests for production of documents, and notices to take depositions were served on all parties.

The Clarkes, through counsel, amended their complaint in July of 2003, making the same allegations contained in their initial complaint and adding as defendants George Steward Groman, M.D. and HPV Heart, P.A., and also filed a notice of discovery stating that they had propounded interrogatories, requests for productions of documents, and a request to take the deposition of Dr. Groman. Without benefit of counsel, they amended their complaint for a second time in September of 2004, two years into the case, adding Thierno A. Diallo, M.D., and his company, Just Heart Cardiovascular Group, Inc., and Camellus Okwochi Ezeugwu, M.D., repeating the allegations made in their original and amended complaint.

The Clarkes' claim was removed from arbitration on May 3, 2002 and filed in the Circuit Court for Howard County on May 14, 2002. The case was originally assigned to the Honorable James B. Dudley and a trial date was set for September 17, 2003, but, due to conflicts in Judge Dudley's schedule, was postponed to October 15, 2003. The trial date was subsequently postponed two more times by consent of the parties, and the case was reassigned to the Honorable Diane O. Leasure. The Circuit Court also scheduled a pre-trial settlement conference, pursuant to Maryland Rule 2-504, on November 3, 2003, although that date also was postponed three times before the final scheduling order was issued on July 12, 2004. The final scheduling order established a trial date of August 22, 2005 and required that all of the Clarkes' expert witnesses be designated by September 30, 2004; that all the Defendants' expert witnesses be designated by November 30, 2004; that all rebuttal expert witnesses be designated by December 31, 2004; that all discovery be completed by May 30, 2005; and that all dispositive motions be filed by June 7, 2005.

The Hospital propounded interrogatories in which the Clarkes were asked for a list of the medical experts they expected to call at trial and for a summary of their experts' opinions. The Clarkes responded that "[e]xpert witnesses will be identified in accordance with a Scheduling Order."

Counsel for Dr. Rodriguez, Dr. Engineer, Dr. Payne, and Central Maryland Urology also propounded interrogatories to the Clarkes and noted the depositions of both Mr. and Mrs. Clarke, as well as that of Dr. Shaughnessy, one of the experts designated by the Clarkes. In Dr. Engineer's interrogatories, he also asked the Clarkes to specify each expert witness they expected to call at trial and to describe the opinion each expert was to give, to which the Clarkes responded by referring to their expert designation, to be filed pursuant to the scheduling order.

Dr. Groman and HPV Heart subsequently answered the Clarkes' interrogatories and request for production of documents. Dr. Groman also propounded interrogatories and requests for production of documents to the Clarkes in which he also asked the Clarkes for a list of their expert witnesses and for a summary of their expert opinions, to which the Clarkes responded that "[e]xpert witnesses will be identified in accordance with the Scheduling Order."

On October 24, 2003, the Hospital filed a pre-trial statement in which two expert witnesses intended to be called at trial were designated, with the caveat that "[b]ecause [the Clarkes] have not made their experts available to testify at depositions, this Defendant reserves the right to designate additional experts, which it may call to testify at trial, after such time as [the Clarke s] make their experts available for deposition."

The Clarkes filed their Preliminary Designation of Expert Witnesses on December 29, 2003, which listed the following persons: Dr. Gary Vigilante, identified as an expert in the field of cardiology, located in Philadelphia, Pennsylvania; Dr. John D. Pigott, identified as an expert in the field of cardiovascular surgery, located in New Orleans, Louisiana; Dr. Allen Johnson, identified as an expert in the field of cardiology, located in La Jolla, California; Dr. Louis Mispireta, identified as an expert in the field of cardiovascular surgery, located in Baltimore, Maryland; Dr. Thomas Shaughnessy, identified as an expert in the field of anesthesiology, located in Burlingame, California; Charles Smolkin, identified as an expert in the field of adult vocational rehabilitation, located in Baltimore, Maryland; Mona Yudkoff, R.N., identified as an expert life care planner, located in Bala Cynwyd, Pennsylvania; and Dr. Jerome Staller, identified as an expert economist, located in Philadelphia, Pennsylvania. After each expert designation, the Clarkes noted that the expert "will be provided for deposition at a mutually convenient date, time and location." The Clarkes filed, through counsel, a Pretrial Statement on July 6, 2004, identifying the same experts, with the addition of Dr. Michael M anyak, identified as an expert in the field of urology, located in Chevy Chase, Maryland.

On July 29, 2004, counsel for the Clarkes moved for leave to withdraw his appearance "[d]ue to facts and circumstances beyond counsel's control" and "irreconcilable differences that make counsel no longer able to proceed with this matter on behalf of the [the Clarke s]," which the judge granted. The Clarkes subsequently...