A Missed Scheduling Order Deadline Ultimately Results in Summary Judgment
January 7, 2021 By Emily F. Belanger
The Court of Special Appeals of Maryland, in the case of Asmussen v. CSX Transp., Inc., No. 814, Sept. Term, 2019, 2020 WL 5417549 (Md. Ct. Spec. App. Sept. 10, 2020), recently ruled that the trial court did not abuse its discretion in striking two of plaintiff’s expert witnesses when the failure to meet a scheduling order deadline resulted from an “indefensible lack of diligence.”In Asmussen, Paul Asmussen sued his former employer, CSX Transportation, Inc. (hereinafter “CSX”), alleging that his cancer had been caused by exposure to toxic agents during his more than a decade of employment as a trackman for CSX. As the case proceeded through discovery, on the last day to designate expert witnesses, Asmussen identified four expert witnesses: Drs. Joseph Regna, James Dahlgren, Christopher Runz, and Patrick Shanahan. The designation, rather than comply with Maryland Rule 2-402(g), provided only broad general information about the scope of the expert’s proposed testimony. Dissatisfied with the designation, counsel for CSX requested additional information.
In response, Asmussen served an amended designation setting forth, in part, Drs. Regna and Dahlgren as causation witnesses; that said doctors were expected to testify that Mr. Asmussen’s kidney cancer was caused by exposure to toxic agents. Dr. Runz was identified as a treating physician and Dr. Shanahan was not mentioned.
As the case proceeded, Asmussen withdrew Dr. Dahlgren as an expert and sought to provide deposition availability for the other doctors. At the deposition of Dr. Regna, it became clear to all parties that “his background, education, training, and experience did not qualify him to opine as to the causation of [Asmussen’s] kidney cancer.” Asmussen, as a result of the deposition of Dr. Regna, informed counsel for CSX that he would now rely on Dr. Dahlgren, who he had earlier withdrawn. CSX never received a report from Dr. Dahlgren, discovery closed, and Dr. Dahlgren was not deposed.
Efforts of Asmussen to secure the deposition of Dr. Runz, despite various representations to counsel for CSX, were incorrect. As counsel for Dr. Runz informed counsel for CSX, “at no point were any deposition dates supplied or agreed upon.”
Recognizing the predicament, counsel for Asmussen filed a motion to modify the scheduling order on the day the court had ordered discovery to close. Asmussen argued that preventing the deposition of Drs. Runz and Dahlgren and the supplemental report of Dr. Dahlgren would be a “case-ending sanction.” CSX argued that there was no good cause for the modification because it was Asmussen’s counsel’s lack of diligence that had precluded the timely deposition of Drs. Runz and Dahlgren. CSX also moved to strike Drs. Runz and Dahlgren. Separately, CSX filed a motion for summary judgment arguing, in part, that Asmussen did not have an expert capable of establishing the causal link between Asmussen’s exposure to any toxic agents and his kidney cancer.
The trial court viewed Asmussen’s motion to modify the scheduling order and CSX’s motions as intertwined. The court ruled that Asmussen’s “midstream” change back to Dr. Dahlgren was not proper. As to Dr. Regna, the court concluded that counsel for Asmussen failed to sufficiently vet Dr. Regna. With respect to Dr. Runz, the court concluded that counsel for Asmussen failed to make an “appropriate effort” to arrange his deposition. Ultimately, the court denied Asmussen’s motion to modify, granted CSX’s motion to strike Drs. Runz and Dahlgren, and granted summary judgment in favor of CSX because, given the other rulings, Asmussen had no causation expert and Asmussen had not proffered an expert to opine on the standard of care and any breach of said standard.
Asmussen appealed and the Maryland Court of Special Appeals affirmed each of the trial court’s three rulings. In affirming the Court held:
These questions are interesting. But their answers lie at the end of analytical paths down which we need not travel. This is because we have held that the circuit court did not abuse its discretion in declining to accommodate Dr. Dahlgren’s late designation. And without Dr. Dahlgren, Asmussen’s claim could not survive CSX’s motion for summary judgment—even if no standard-of-care expert was required and the circuit court did not strike Dr. Runz.
Takeaways from Asmussen – vetting of experts, timely and complete expert designations, and requests to extend applicable scheduling orders – while sometimes get a quick brush over, can come back to ultimately decide a case.