MOTION TO STRIKE EXPERTS

IN THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY, MARYLAND
Civil Division

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IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND
Civil Division

RICHARD ROBERRTS,
Plaintiff,
v.
MICHAEL JOHNSON

**********

Case No. 24-C-09-000996

PLAINTIFF’S MOTION TO EXCLUDE EXPERTS

PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S EXPERT WITNESSES

Plaintiffs, by and through their attorneys, Ronald V. Miller, Jr., Laura G. Zois and Miller & Zois, LLC and respectfully request that this Honorable Court preclude the Defendants from offering any expert opinions in this case from Steve H. Caplan, Ph.D. and Nicholas F. Lattas, Ph.D., because: (1) The experts have been subpoenaed to appear for depositions and produce records and have not appeared for depositions or produced any records responsive to the depositions duces tecum; (2) the experts communicated to Plaintiffs’ counsel both in writing and by telephone that they were not appearing at trial; and (3) Defendants have not answered  discovery seeking what opinions these experts would offer at trial, which is now three weeks away.                       

Introduction

This case involves an automobile accident which took place on February 10, 2005.  The
Defendant, Michael Johnson, was operating his vehicle under the influence of alcohol.   On his way home from D.C., he went around a curve, struck a curb and lost control of his car.  He went into on-coming traffic and struck a tour bus traveling in the opposite direction.  As a result of the crash, his passenger, David Roberts, was killed.  During the course of the litigation, the Defendants have designated toxicologists, Drs. Kaplan and Lattas. 

Defendant’s Experts Have Not Produced Records Pursuant to the Subpoenas Duces Tecum

On September 19, 2009 and September 27, 2009, Plaintiffs served Dr. Caplan, and Dr. Lattas, respectively, with deposition subpoenas asking them to appear for depositions and to produce records.  See Exhibit A, Deposition Duces Tecum for Drs. Kaplan and Lattas.  These experts contacted Plaintiffs’ counsel and indicated that he could not comply with the subpoenas because, as set forth below, they knew nothing about the case and had not agreed to testify as an expert.  Accordingly, because they have not complied with these subpoenas, they should be precluded from testifying at trial in this matter.    

The Experts Communicated to Plaintiffs’ Counsel Both in Writing and By  Telephone That They Were Not Appearing at Trial

As set forth above, Plaintiffs served deposition notices and request for production of documents to Defendant’s experts.  These experts then called Plaintiffs’ counsel, both leaving voice messages insisting that they had not agreed to participate in the case and asked to be released from their subpoenas.  Undersigned counsel in turn left messages for these experts asking them to memorialize our agreement to release them from their subpoenas in exchange for their confirming that they would not be participating in this case.  Both experts complied.  See Exhibit B, correspondence from Dr. Kaplan, Exhibit C, correspondence from Dr. Lattas, and Exhibit D, transcribed phone messages from Dr. Lattas and Dr. Kaplan.

Plaintiff has even taken this one step further and sent correspondence to Defendants’ counsel requesting that if these experts held opinions, Plaintiff wanted to know what they were and wanted to take the discovery depositions of such experts to determine whether or not a rebuttal expert would be necessary.  See Exhibit E.  Plaintiffs received no response.

These experts are toxicologists, who will presumably testify as to the blood alcohol levels of Julian Pendleton and Michael Mahanand.  Trial is in three weeks and Plaintiff has no idea what these witnesses will say and is unable to provide a rebuttal expert when it does not know what these experts’ opinions are.        

Plaintiffs’ counsel acted in reliance on the word of these experts that they would not be appearing at trial, had not formed opinions, and the Defendants’ complete failure to supplement discovery on this issue.  Now, three weeks before trial one of the Defendants’ attorneys informally suggests that Dr. Kaplan may have an opinion. Because the severe prejudice to the Plaintiffs is obvious and Defendants had plenty of time to correct the position of these experts, they should not be permitted to testify at trial.

Defendants Have Failed to Respond to Requests for Production of Documents and Interrogatories Regarding Expert Opinions

Defendants have refused to provide substantive discovery responses regarding what the designated expert’s opinions may be. Plaintiffs propounded the following requests for the production of documents:

1. All written reports of each person whom you expect to call as an expert witness at trial.

2. All documents upon which any expert witness you intend to call at trial relied upon to form an opinion.

3. A copy of the most recent curriculum vitae of each expert whom you expect to call as an expert witness at trial.

4. All notes, diagrams, photographs, x-rays or other documents prepared or reviewed by each person whom you expect to call as an expert witness at trial.

Allstate’s response to these Requests were “None at this time.”   To date, Defendant Michael Mahanand has not formally responded to the Requests for Production of Documents.  However, there was a Motion to Compel that was granted ordering the production of the documents.  Plaintiffs have not received any of the documents requested in their requests for production of documents.

Similarly, interrogatories served upon Allstate including the following question:

INTERROGATORY 7.  State the name and specialty of all experts whom you propose to call as witnesses at trial, and for each expert state the subject matter on which the expert is expected to testify, the substance of the findings and opinions to which the expert is expected to testify and attach to your Answers copies of all written reports of each such expert.

Allstate’s answer:  “The Defendant reserves the right to call the following
toxicologist, Steve Caplan, Ph.D. or Nicholas Lattas Ph.D.”   Allstate has not even attempted to anticipate what the proposed testimony may be, let alone comply with the requirements of Maryland Rule 2-504(b)(1)(B). Maryland Rule 2-504(b)(1)(B) requires a Scheduling Order to include one or more dates by which each party shall identify each person it intends to call as an expert witness at trial. By this very rule, the party’s designation must contain the information required by Maryland Rule 2-402(f)(1) including: the identity of the witness, the subject matter on which the expert is expected to testify, a summary of the grounds of the expert’s opinion, as well as a copy of any report prepared by the expert concerning his or her opinions and findings.

Trial is now three weeks away and Defendant has not offered the subject matter upon which its experts intend to testify, provided a summary of the grounds of their expert opinion, nor has he attached a copy of any report prepared by his experts concerning their opinions and findings.  Defendant’s designation is lacking any mention of what the expert opinions actually are.  As such, Defendant has failed to disclose its expert in compliance with the Maryland Rules and the Scheduling Order issued in this case and his experts should be precluded from testifying at trial. 

Conclusion

            For these reasons Plaintiff respectfully requests that this Court preclude the testimony of Dr. Caplan and Dr. Lattas at the trial of this matter.

Respectfully submitted,

MILLER & ZOIS, LLC

 

 ________________________                                                                                              
Ronald V. Miller, Jr.
Empire Towers, Suite 1001

7310 Ritchie Highway
Glen Burnie, Maryland   21061
(410)553-6000
(410)760-8922 (Fax)
Attorney for the Plaintiff

 

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