Defendants’ Violation of Scheduling Order Did Not Support Exclusionary Sanctions

Two weeks before trial, the defense disclosed an expert opinion: “Mr. Williams [the plaintiff] presents one issue on appeal: whether the circuit court abused its discretion when it denied his motion to strike [defendant] Transdev’s supplemental expert designation.”  Williams v. Transdev Services, Inc., 2025 WL 2416427 (Appl. Ct. Md. Aug. 21, 2025)(unreported).[1]

Defendant, Transdev, disclosed an expert opinion two weeks before trial and after the discovery cut off. Plaintiff, Mr. Williams, asserted unfair surprise.  However, Mr. Williams had failed to disclose his history of prior falls in this slip-and-fall case and had failed to disclose a complete list of health care providers in his answers to interrogatories. The Court wrote:

His original answer did not provide a full picture of his pain management treatment. This might have been an oversight. It might have been a reasoned choice. But in the end, the balance of the parties’ violations didn’t compel the court to strike Transdev’s admittedly late supplemental expert disclosure.

Mr. Williams is an individual with a disability. He is “legally blind.”  Mobility Link transported him to his job in a van operated by defendant Transdev.  The van parked at an angle, leaving a space between the curb and the van. Mr. Williams slipped, fell, fractured his wrist, and alleged that Transdev was negligent. The Appellate Court wrote:

During discovery, Transdev disclosed that its expert would opine on the cause of Mr. Williams’s wrist injury. Shortly before trial but after discovery, however, Transdev added that its expert would opine as well on how Mr. Williams’s pre-existing medical conditions contributed to his fall. Mr. Williams moved to strike Transdev’s supplemental expert disclosure and the circuit court denied the motion; Mr. Williams opposed any continuance of the trial as well.

The jury found that Transdev was negligent, but its negligence was not causally related to the wrist injury.  Mr. Williams appealed.

The trial court’s scheduling order set milestones for expert discovery and a trial date.  The modified order gave Transdev until May 29, 2023, to designate its expert. Discovery closed on July 29^th.  Motions in limine were due by August 29^th.  Based on late discovery responses from Mr. Williams, Transdev issued subpoenas to additional health care providers and moved for an extension of time  The motion was denied.

On May 26, 2023, Transdev “designated Dr. Marc Danziger as an expert in the field of orthopedic surgery and disclosed that he would testify about Mr. Williams’s injuries, their relation to pre-existing conditions, the permanency of the injuries, and his treatment,” and produced an expert report.

The Court explained:  “On October 11, 2023, Transdev served Mr. Williams a supplemental designation of expert witnesses that previewed plans for Dr. Danziger to testify about the cause of his fall….  Transdev served this supplemental designation four months after the scheduling order deadline for its expert disclosure, two months after discovery had closed, roughly two weeks before trial, and hours before Dr. Danziger’s de bene esse[2] deposition was scheduled to begin.”

Two available remedies in such a situation are: (1) to request a discovery deposition prior to the de bene esse deposition; or, (2) to ask for a postponement of the de bene esse deposition or trial.

The Court noted that: “Mr. Williams did not request a discovery deposition of Dr. Danziger or ask to postpone his de bene esse deposition.” During the deposition, the doctor testified about a history of falling, among other things. Additionally: “He opined to a reasonable degree of medical certainty that Mr. Williams’s 2019 injury and his gait and ambulation problems were a contributing factor to his slip and fall.”

Mr. Williams moved to strike Transdev’s supplemental expert designation and exclude the testimony about the cause of the fall.  At first, the motion was granted.  Later, the court struck that ruling and the motion was denied.

The Appellate Court affirmed, finding no abuse of discretion.

If a scheduling order violation is the result of a discovery failure, the trial court has wide discretion to determine what sanction, if any, is appropriate…. An abuse of discretion happens when the court’s ruling is manifestly unreasonable… exercised on untenable grounds, or for untenable reasons…. [cleaned up].

The governing principle is:

Circuit courts have inherent authority to impose sanctions for violations of scheduling orders…, but that authority is not unlimited…. When considering whether a sanction should issue for such a violation, “the reasons given for noncompliance, and the need for an exemption from the … deadlines imposed[ ] are significant.” …. Sometimes absolute compliance with a scheduling order isn’t feasible. …. Our courts have maintained flexible expectations, demanding “ ‘substantial compliance, or, at the barest minimum, a good faith and earnest effort toward compliance.’ ”

The standard for sanctions for violation of a scheduling order parallels that of sanctions for a discovery violation. “[T]he circuit court should weigh certain factors, such as why the disclosure wasn’t made, the degree of prejudice, if any, to the other party because of the violation, the feasibility of curing that prejudice, and any other relevant circumstances.” [cleaned up].

Here, Mr. Williams asserted “unfair sandbagging” by late disclosure.  However, Transdev “suggested that Mr. Williams’s nondisclosure during discovery had prevented Dr. Danziger from opining on the cause of his fall any sooner. Transdev offered to agree to continue the trial so that Mr. Williams could take a discovery deposition of Dr. Danziger and retake his de bene esse deposition.”  Transdev argued that Mr. Williams had not timely disclosed all his medical providers and that it had unearthed them through its own investigation.

The Appellate Court wrote: “Under the circumstances, Transdev had a legitimate, documented reason for its late supplemental disclosure.”  While it had some pertinent facts earlier, “it remained entitled to the discoverable information it requested on October 24, 2022 that Mr. Williams didn’t answer fully until August 10, 2023. During that time, Transdev discovered additional treatment providers through its own investigation, subpoenaed those providers, and moved to compel answers to its questions about the 2019 injury and all the medical providers Mr. Williams had seen. When Mr. Williams identified new providers in his amended August 10 interrogatory responses, Transdev subpoenaed those providers.”  Further, Transdev had moved for an extension of time.

The Court added:

Mr. Williams argues that the court’s ruling prejudiced him. We understand that Transdev’s designation took him by surprise, but given the parties’ discovery dispute, its disclosure wasn’t so surprising. Mr. Williams knew that Transdev was still acquiring information about his prior medical history and latest medical treatments as recently as July and August 2023. To the extent that Mr. Williams thought he should be able to disclose new information late without it being used defensively at trial, that expectation was unreasonable. [Emphasis added].

Additionally: “Mr. Williams’s tactical decisions compounded the impact of Transdev’s late disclosure as well.”

The court weighed Mr. Williams’s discovery violation against Transdev’s scheduling order violation and concluded that the prejudicial impact of the violations canceled each other out. And although the court didn’t offer to cure the prejudicial effect of Transdev’s late disclosure, Transdev offered an alternative when it proposed to let Mr. Williams take Dr. Danziger’s discovery deposition, retake his de bene esse deposition, and agreed to postpone the trial. Mr. Williams didn’t entertain those offers even though they could have relieved the surprise he suffered when Transdev violated the scheduling order.

In short, Mr. Williams chose to roll the dice on exclusion.  The Appellate Court found no error in “denying Mr. Williams’s request for an all-or-nothing sanction.”

Excluding evidence for a scheduling order violation is a strong sanction and should be a last resort if other, less drastic measures are available, which they were in this case.

Mr. Williams “moved to strike that testimony—the strongest possible sanction—rather than lesser cures such as postponing Dr. Danziger’s de bene esse deposition, retaking it, taking his discovery deposition, or asking the court for leave to retake his own expert’s deposition. Striking Dr. Danziger’s supplemental opinion was not the only potential remedy.”

Here, the Court viewed Transdev’s efforts as an “an earnest and good faith effort to comply with the scheduling order while maintaining its obligation to keep following the discovery trail.”

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[1] “This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for persuasive value only if the citation conforms to Maryland Rule 1-104(a)(2)(B).”

[2] “A de bene esse deposition is a taped expert witness deposition played at trial to substitute for the expert’s in-person testimony.”