Dorsey v. Nold

745 A.2d 1119, 130 Md. App. 237, 2000 Md. App. LEXIS 23
CourtCourt of Special Appeals of Maryland
DecidedFebruary 10, 2000
DocketNo. 1461
StatusPublished
Cited by2 cases

This text of 745 A.2d 1119 (Dorsey v. Nold) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dorsey v. Nold, 745 A.2d 1119, 130 Md. App. 237, 2000 Md. App. LEXIS 23 (Md. Ct. App. 2000).

Opinion

MURPHY, Chief Judge.

In this appeal from the Circuit Court for Anne Arundel County, the appellants are the parents and the estate of Candace Dorsey (hereinafter “the Dorseys”), who died on December 14,1993. The appellees are Candace’s pediatrician, [241]*241Dr. Jeffrey Nold, and his employer, Anne Arundel Medical Center a/k/a Anne Arundel General Hospital d/b/a Pediatric Medical Center of Annapolis. Following Candace’s death, the Dorseys filed suit against the appellees, contending that Candace died of asphyxiation caused by two cancerous thyroid tumors that were pressing against her airway, and that she would not have died if Dr. Nold recognized the severity of her condition and recommended immediate action when he examined Candace three days earlier. A jury ultimately determined that Dr. Nold did not breach the applicable standard of care in his treatment of Candace.

The Dorseys argue, in essence, that:

I. The trial court (i) erred in determining that the Dorseys committed a discovery violation by failing to inform the appellees until six days prior to trial that they intended to call the medical examiner who performed the autopsy on Candace’s body, and (ii) abused its discretion in precluding the medical examiner’s testimony in the Dorseys’ case-in-chief as a sanction for the violation,
II. The trial court erred by refusing to permit the Dorseys to call the medical examiner to the stand to present rebuttal evidence, and
III. The trial court abused its discretion by refusing to permit the Dorseys to present evidence that, shortly before Candace’s death, Dr. Nold failed the examination for board certification in pediatrics.

For the reasons that follow, we shall affirm the judgments of the circuit court.

FACTUAL BACKGROUND

Candace visited Dr. Nold at his office on December 11,1993, complaining that she had been coughing for about a week and had been suffering from a sore throat, hoarseness, and congestion for two days. During his examination of Candace, Dr. Nold observed that she had a “large thyroid goiter [approximately] six centimeters” in size which, Candace told him, had [242]*242been there for years.[1] Dr. Nold gave Candace a “rapid strept test,” which proved negative for streptococcus bacteria, then diagnosed her as having an upper respiratory infection, or cold. He directed her to have blood work done the following Monday, December 13, 1993, to ensure that her thyroid was functioning properly.

Candace went to school on Monday, then had the blood work done after school. She continued to cough, and that evening complained that she was still not feeling well. During the following night, Candace’s family awoke to hear her gasping for breath. They found her on the floor of the hallway outside her bedroom, unable to speak. Candace’s father called 911. When paramedics arrived they immediately gave her oxygen, but as they placed her in the ambulance she went into cardiac arrest. Resuscitation efforts of the paramedics were unsuccessful, however, as were resuscitation efforts made upon Candace’s arrival at the hospital.

Dr. Theodore King, an assistant medical examiner in the Office of the Chief Medical Examiner of the State of Maryland, performed an autopsy on Candace’s body. According to his autopsy report, Dr. King found that “[t]wo discreet, encapsulated masses were present in front of the trachea just beneath the inferior lobes of the thyroid gland. The higher mass measured 3” by 2” by 3”, while the lower mass, 1/2” subjacent, measured 3” by 2” [by] 1-1/2” and extended down over the right atrium of the heart.” Dr. King noted: “Neither of these masses involved the adjacent trachea or the right atrium of the heart, but the masses did narrow and compress the adjacent airway.” He concluded that Candace “died of asphyxia (choking) secondary to airway compression. The airway compression was caused by an infiltrating carcinoma of the thyroid which arose in the neck of the deceased and compressed her airway.”

[243]*243PROCEDURAL HISTORY

Trial was scheduled to begin on June 16, 1998. Prior to trial, and after consultation with counsel, the court prepared a “Case Management/Scheduling Order.” That order provided, in pertinent part:

Discovery Cutoff: All discovery procedures including but not limited to depositions and Answers to Interrogatories shall be concluded not later than April 30, 1998, (“the discovery cutoff date”).
By October 20, 1997, Plaintiffs shall furnish, and by January 1, 1998, Defendants shall furnish, to opposing counsel, the names and addresses of all expert witnesses and such other information regarding expert witnesses as is required by the Maryland Rules of Procedure, Section 2-402(e)(1).

Although appellees timely furnished a list of expert witnesses to the Dorseys, they did not provide the Dorseys with the substance of the expert opinions. The Dorseys did not depose at least one of the defense witnesses, Dr. Grover Hutchins, until May 4, 1998, four days after the discovery cutoff date.2 Two hours before that deposition took place, counsel for the Dorseys was informed by counsel for appellees that Dr. Hutchins believed that Candace’s asphyxiation was caused by an asthma attack and not compression of her airway. Dr. Hutchins confirmed this belief during the deposition. More than a month later, on June 10, 1998, counsel for the Dorseys faxed appellees a letter, informing them that, “in light of the deposition testimony of Dr. Hutchins, Plaintiffs may call Dr. Theodore King to testify at trial.”

On June 15, appellees moved in limine to bar the Dorseys from calling Dr. King in their case-in-chief. The motion was argued just before trial on June 16. Counsel for appellees acknowledged that he was aware that the Dorseys planned to [244]*244introduce into evidence the autopsy report prepared by Dr. King, and stated that the appellees did not oppose the introduction of the report. He nevertheless argued: “[Tjhis is certainly trial by surprise to drop an expert witness on us a few days before trial.” He also contended that he did not have sufficient time to depose Dr. Kang subsequent to the disclosure, and pointed out: “[I]t violates the Court’s deadlines, and it would be extremely prejudicial for us to have to gear up now to try to defend whatever the testimony is going to be from Dr. King at this point as an expert witness.”

Counsel for the Dorseys countered that Dr. King was “a fact witness” rather than “some expert that they had to get me to cooperate in a deposition.” He pointed out that, because Dr. King had performed the autopsy, appellees had known of his existence all along and had even met with him several times. The Dorseys, on the other hand, did not know until just before they deposed Dr. Hutchins that appellees planned to challenge Dr. King’s findings. Counsel for the Dorseys argued:

This doctor [ (Dr. King) ] is being called to testify concerning his autopsy report, which the Defense has a copy of. I am not calling him to offer anything else other than what is in his autopsy report.
And I think it is incumbent upon me to do that when I just recently found out that the Defense has got an expert that is going to say that he — this man is wrong.

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Related

Butler-Tulio v. Scroggins
774 A.2d 1209 (Court of Special Appeals of Maryland, 2001)
Dorsey v. Nold
765 A.2d 79 (Court of Appeals of Maryland, 2001)

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Bluebook (online)
745 A.2d 1119, 130 Md. App. 237, 2000 Md. App. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dorsey-v-nold-mdctspecapp-2000.