Late Motion to Compel: Monroe v. UMMC 2

The Baltimore Medical Malpractice Lawyer Blog regularly discusses Maryland appellate opinions in medical malpractice cases, usually based on negligence. On May 24, 2024, the Appellate Court of Maryland issued an unreported opinion in Monroe v.  University of Maryland Medical Center, LLC (“UMMC”), No. 1550. That case also asserted claims in the medical care setting, but they were intentional torts, not negligence. This Blog post is part 2, and it looks at the second holding that the Appellate Court discussed. That holding involved discovery disputes, specifically, a late motion to compel under Rule 2-432.

In part 1, I examined the first holding that the Appellate Court discussed involving reporter immunity. The Appellate Court held that the circuit court properly denied summary judgment on the issue of lack of good faith in reporting the abuse or neglect of a child. Future Blog posts will discuss additional holdings from this case.

Factual Background to the Late Motion to Compel

Ms. Monroe’s two children, ages 5 and 6, had been taking several over-the-counter (OTC) cough medications for a few days for flu symptoms. She then called 911 to report that her kids were unconscious and barely breathing. 

The ambulance took them to UMMC, where they did a battery of tests. VITROS rapid urine tests were positive for opiates in both children. Afterward, a blood test did not reveal any opiate presence. UMMC reported the urine tests to the Department of Social Services (DSS) and treated the kids for acute respiratory failure. They were in comas and on ventilators for several days.

Ms. Monroe lost custody of her kids for four months while DSS conducted an investigation concerning the kids’ safety. The kids made a full medical recovery. Tragically, one of the kids died by suicide three years later.

Lawsuit

Ms. Monroe brought suit in the Circuit Court for Baltimore City for her family. They alleged that UMMC’s reporting to DSS was in bad faith. The plaintiffs alleged that the UMMC toxicologist falsely stated that the OTC medication could not cause Dextromethorphan (DXM) levels that resulted in a false positive on the urine test, that UMMC ignored Ms. Monroe’s explanation concerning the medicines taken, and that UMMC was motivated by racial and economic bias.

Both sides retained expert toxicologists, and the late motion to compel arose as part of discovery disputes over disclosing the experts’ opinions.

Late Motion to Compel

The plaintiffs’ motions to compel discovery specified a notebook of a defense toxicologist’s notes and calculations (Op. at 92). The defense responded that the plaintiffs questioned the defense doctors over two days in a July hearing, received the folder in September, and then chose not to depose them before questioning them again at the October hearing. The defense argued that the plaintiffs did not identify nondisclosure or prejudice. (Id. at 93). 

Trial courts “are vested with a reasonable, sound discretion in applying [the discovery rules], which discretion will not be disturbed in the absence of a showing of its abuse.” Falik v. Hornage, 413 Md. 163, 182 (2010).

On January 12, the plaintiffs filed the three late motions to compel. They included a certificate of good faith under Rule 2-431 listing the emails they sent to the defense requesting discovery. The defendants opposed the motions, saying they had produced everything and that the plaintiffs had not made good faith attempts to discuss resolution. (Op. at 96). 

Courts’ Opinions

The circuit court denied the plaintiff’s motions without a hearing. (Id. at 95). The circuit court observed that the plaintiffs filed their motions three months after the alleged discovery failures. As a result, the circuit court found that the plaintiffs had failed to file the motions with reasonable promptness under Rule 2-432(d). The circuit court also noted the pettifogging nature of the parties’ papers, and the court was not convinced that the plaintiffs had made a good faith attempt to resolve the issues with the defense. The Appellate Court found no abuse of discretion. (Id. at 97).

The Appellate Court then addressed the circuit court denying the plaintiffs’ motions to limit the defense experts. The plaintiffs sought to exclude formulas to calculate DXM levels as trial by ambush. The defendants argued that the formulas supplemented what their experts had gleaned from literature in the plaintiff’s possession and did not change the experts’ opinions. The defendants also said the plaintiffs had not deposed the defense experts (Id. at 98).

The Appellate Court found no abuse of discretion. The defendants’ intention to use a formula to calculate the amount of DXM was hardly surprising. The plaintiffs had a toxicologist with access to the same data and research as the defense experts and the plaintiff had an opportunity to depose the defense experts (Id.).

Commentary by the Baltimore Medical Malpractice Lawyer on Late Motion to Compel

Several big-picture views help explain the outcome of this issue. If there is someone who dislikes discovery disputes more than a trial judge, it could be an appellate judge. The Appellate Court issued a 130-page opinion in this case, ultimately concluding that the circuit court correctly excluded the plaintiffs’ toxicology expert after a Daubert hearing. Nothing in the opinion suggests that any nondisclosure hampered the plaintiffs’ participation in the hearing. The late motion to compel does not seem to be a critical part of the trial court proceedings.

Add to this the deferential abuse of discretion standard. Add further the circuit court’s reference to the discovery papers as pettifogging and questioning whether good faith attempts to resolve the disputes had occurred. It is easier to see why the Appellate Court did not disturb the circuit court’s rulings.

The courts also relied on the plaintiffs’ failure to depose the defense experts. Parties are entitled to make the other side answer interrogatories concerning their experts and “to state the substance of the findings and the opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Rule 2-402(g)(1)(A) (emphasis added). Here is where the depositions come in. If a party seeks more details about an expert’s opinions than the interrogatory answers provided in summary form, depositions are the answer. The Monroe decision shows that courts will not be sympathetic to complaints of lack of details provided if the complaining party chooses not to do a deposition.

Additional Observations

There are a couple of additional notable components of the Monroe late motion to compel decision. First, the circuit court denied the motions because the plaintiffs filed them late. Rule 2-432(d) provides that a party shall file a motion to compel discovery with “reasonable promptness.” This requirement is a vague standard, and courts rarely invoke it. Here, it is clear that the circuit court felt that the plaintiffs had unnecessarily delayed filing their motions. 

Second, the court’s answer to the plaintiffs’ request to exclude defense experts for not disclosing formulas was that it was not surprising that they would use formulas. The plaintiffs’ expert had access to the same data and research. I do understand this response. The point is different from what the experts can access but rather how they use that information to form their opinions. The plaintiffs can have the first part and still be entitled to receive the second part.

Practice Tips from the Baltimore Medical Malpractice Lawyer

Here are some practice tips to obtain the discovery you need, even if a motion to compel is required:

Serve Interrogatories and Document Requests Early

Early service allows time to follow up with additional requests and then to move to compel for any failures to provide discovery.

Seek Tailored Information

Many lawyers serve massively overbroad discovery requests and then narrow them once the other side objects. One unfortunate aspect of this strategy is that when you prepare a motion to compel, you must list the original request. Hence, the judge starts by reading your unnecessarily broad request. It is better to seek the actual information you need.

For example, some lawyers will serve a document request for all documents related to every time the defendant has been previously sued for medical malpractice. Sometimes, they do this for hospitals—imagine the amount of documents! Every medical record, pleading, and deposition from every lawsuit would be massively overbroad, even for individual doctor defendants.

Instead, consider an interrogatory that requests the doctor to identify every time a lawsuit has been filed based on his professional conduct (this would include any time the plaintiff did not name the doctor may not personally in the lawsuit or dropped them from it). The plaintiffs’ lawyer can then take this information and determine whether any part of the files is relevant to the present case. For instance, in a case where the doctor performed the same procedure as in your case, you can seek the doctor’s deposition to see what he testified to in the other case.

Promptly Pursue Failures to Provide Discovery – Avoid Late Motion to Compel

Be sure to seek to resolve the discovery disputes promptly with the other side so that you can file any motion to compel with reasonable promptness under Rule 2-432(d). Also, document the resolution attempts in a certificate under Rule 2-431.

In sum, it pays to be aware of the circuit court judge’s perspective when examining your motion. Will your timely requests appear reasonable, and have you promptly tried to resolve the dispute in good faith? If so, you should be in good standing even if the trial judge is not a fan of discovery disputes.

You can read other Blog posts on the topic of discovery, including on a discovery violation.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.