Watson v. Timberlake

• Decision Date: 02 July 2021
• Docket Number: No. 38, Sept. Term, 2020,38, Sept. Term, 2020
• Citation: 251 Md.App. 420,253 A.3d 1094
• Court: Court of Special Appeals of Maryland
• Parties: Sandra WATSON v. Rodney W. TIMBERLAKE, et al.

251 Md.App. 420

253 A.3d 1094

Sandra WATSON

v.Rodney W. TIMBERLAKE, et al.

No. 38, Sept. Term, 2020

Court of Special Appeals of Maryland.

July 2, 2021

Argued by: Patrick G. Senftle (Pressler, Senftle & Wilhite, PC), Washington, D.C., for Appellant.

Argued by: Alexander M. Giles (Imran O. Shaukat, Semmes, Bowen & Semmes), Baltimore, MD, for Appellee.

Panel: Leahy, Gould, Anne K. Albright (Specially Assigned), JJ.

Albright, J.

On November 4, 2015, at an intersection in Prince George's County, the car driven by Appellant Sandra Watson ("Watson" and plaintiff below) hit a trash truck. Appellee Bates Trucking Company, Inc. ("Bates" and defendant below) leased the truck, and at the time of the collision, Bates's employee, Appellee Rodney W. Timberlake ("Timberlake" and defendant below), was driving the truck.¹ Watson filed a negligence action in the Circuit Court for Prince George's County. Four months before trial, Timberlake and Bates identified an accident reconstructionist as an expert trial witness, but did not supply his actual opinion. Three days before trial, Timberlake and Bates told Watson that the reconstructionist would describe what Watson should have been able to see as she neared the intersection. On the first day of trial, Watson orally asked Judge Judy L. Woodall to exclude the reconstructionist's opinion as late. Judge Woodall denied Watson's motion, concluding that the issue was a discovery dispute that Watson should have raised earlier. Watson's motion to strike the opinion also failed. Following the jury's verdict for Timberlake and Bates and the denial of Watson's new trial motion, Watson noted this appeal. She presents three questions for our review,² which we consolidate as follows:

I. Whether the trial court abused its discretion in declining to exclude or strike the expert testimony of Timberlake's and Bates's accident reconstructionist because their disclosure of his opinion violated the Scheduling Order; and

II. Whether the trial court abused its discretion in denying Watson's motion for new trial.

Finding no abuse of discretion, we affirm.

BACKGROUND

On November 4, 2015, Watson was driving her grandson to elementary school, traveling northbound on Route 202 toward Dunloring Drive, at approximately 45 miles per hour, five miles per hour below the posted speed limit. At nearly the same time, Timberlake, travelling southbound, was attempting to cross northbound Route 202 to Dunloring Drive. Watson testified at trial that Timberlake never yielded to her and turned into her path of travel. Watson said she tried to swerve but was unable to avoid hitting the truck. Timberlake testified that he stopped to allow a group of cars to pass, crossed Route 202 at a break in the traffic, and turned onto Dunloring Drive. He saw Watson approximately a quarter mile away, far enough, he thought, to allow the turn. As he turned, though, Timberlake said he thought Watson was driving at an excessive rate of speed and appeared distracted. Timberlake accelerated through the intersection but not before Watson hit the back right end of the truck. Claiming substantial injuries and damages, Watson filed suit on July 2, 2018, and requested a two-day jury trial. The case was assigned case number "CAL18-19998."

On March 28, 2019, the circuit court issued a Scheduling Order that was "... not [to] be modified except by order of court upon a showing of good cause." For defense expert witnesses, the court ordered that 30 days before the pretrial conference, "Defense Experts, if any, [be] identified per Maryland Rule 2-402(g) or 2-504.2(9)." All discovery was to completed 60 days prior to trial.³ For "discovery disputes," the Scheduling Order assigned Judge Tiffany H. Anderson, as this was a case ending in "8." Judge Anderson would set hearings "... where appropriate, no later than thirty (30) days after the motion and response have been filed." Failures to comply with the Scheduling Order could "result in the imposition of appropriate sanctions." For disputes over "... any provision of the [Scheduling] Order[,]" the court assigned Civil Coordinating Judge John P. Davey.

On July 25, 2019, in answer to Watson's request for production of documents, Timberlake provided the fee schedule and curriculum vitae for David Plant, an accident reconstructionist that Timberlake intended to call as an expert witness at trial.⁴

On August 6, 2019,⁵ the Scheduling Order's first deadline for disclosure of defense experts, Timberlake and Bates again identified Plant. Specifically, Timberlake and Bates said:

David E. Plant, P.E., D.P Plant & Associates, 3800 Argyle Terrace, N.W., Washington, D.C. 20011. Mr. Plant is an accident reconstructionist and a registered professional engineer. Mr. Plant is expected to proffer opinions to a reasonable degree of scientific and engineering probability. Mr. Plant's opinions will be based on his education, training, and experience, and a review of the case materials, including, but not limited to, police reports, photographs, deposition testimony, the opinions or reports of any other expert, and other records produced in discovery. It is anticipated that Mr. Plant may visit the scene of the accident. He may issue a report, setting forth his professional opinions to a reasonable degree of probability within his field of expertise and setting forth the bases for each such opinion. Mr. Plant may also testify in rebuttal to Plaintiff's expert's opinions and testimonies. A copy of Mr. Plant's curriculum vitae is attached hereto.

On August 9, 2019, Timberlake served a response to Watson's interrogatories.⁶ To Watson's Interrogatory No. 10, which asked Timberlake to identify any expert he intended to call, and, as to each, "state a) the subject matter on which the expert is expected to testify; b) the qualifications of each such expert; and c) the substance of the facts and opinions to which the expert is expected to testify[,]" Timberlake told Watson that "[s]ubject to the foregoing General Objections, Defendant states that he will identify ... experts in accordance with the Maryland Rules and the Scheduling Order entered in this matter."

On August 30, 2019, the parties filed Pretrial Statements. Watson "reserved the right" to call the "[d]efendant's [sic]" expert witnesses as her own, but did not mention the fact of Plant's missing opinion.⁷ Timberlake and Bates again identified Plant and added two other expert witnesses. As to Plant, Timberlake and Bates said

David Plant, P.E., Plant & Associates, 3800 Argyle Terrace, N.W., Washington, D.C. 20011. Mr. Plant is an accident reconstructionist and a registered professional engineer. Mr. Plant is expected to proffer opinions to a reasonable degree of scientific and engineering probability. Mr. Plant's opinions will be based upon his education, training, and experience, and a review of the case materials, including, but not limited to, police reports, photographs, deposition testimony, the opinions or reports of any other expert, and other records produced in discovery. It is expected that Mr. Plant will issue a report setting forth his professional opinions to a reasonable degree of probability.

On September 5, 2019, at a telephonic pretrial conference, Judge Anderson determined that liability was "seriously in dispute." As to the number of expert witnesses, Timberlake and Bates repeated three. The parties mentioned challenges in deposing one of Watson's experts and a second pretrial conference was scheduled with Judge Davey for October 4, 2019.

On October 4, 2019, at the second telephonic pretrial conference, Judge Davey scheduled a three-day jury trial for December 3-5, 2019. As to expert witnesses, Timberlake and Bates continued to indicate three. Judge Davey ordered a November 15, 2019 deadline for expert depositions and warned counsel that failure to follow that deadline could mean experts would not be able to testify.⁸

On November 29, 2019, Timberlake and Bates filed an Amended Pre-Trial Statement again identifying Plant. Specifically, they said

David Plant, P.E., D.P. Plant & Associates, 3800 Argyle Terrace, N.W., Washington, D.C. 20011. Mr. Plant is an accident reconstructionist and a registered professional engineer. Mr. Plant is expected to proffer opinions to a reasonable degree of scientific and engineering probability. Mr. Plant's opinions will be based upon his education, training, and experience, and a review of the case materials, including, but not limited to, police reports, photographs, deposition testimony, the opinions and reports of any other expert, and other records produced in discovery, as well as his investigation pertaining to the location of the accident. Mr. Plant is expected to testify regarding the details of the accident, the location of Plaintiff's vehicle at the time the truck turned across the northbound lanes of Route 202/Largo Road, and what Plaintiff should have been able to view when approaching the intersection of Route 202/Largo Road and Dunloring Drive.

At the start of trial on December 3, 2019, Watson moved orally to preclude Plant from testifying, a motion on which Judge Woodall reserved until December 4, 2019. Having received and reviewed Timberlake's and Bates's written opposition overnight, Judge Woodall asked Watson why she had failed to bring the matter to the court's attention pretrial. Watson indicated she was "taken by surprise here," that she thought Timberlake and Bates had abandoned Plant as a witness, and that it was not her duty to force Timberlake and Bates "... to fulfill their duties of disclosure." After showing Judge Woodall a copy of Timberlake's and Bates's expert designation,⁹ Watson pointed out that in it, they had failed to provide Plant's opinion or the factual basis for it. Calling the failure to provide Plant's opinion a "discovery violation" also,¹⁰ Watson drew Judge Woodall's attention to the " Taliaferro factors,"¹¹ and outlined how they applied. Timberlake and Bates countered that expert witnesses cannot...