Food Lion v. McNeill and Discovery Objection Timing

Last month, the Maryland Court of Appeals decided Food Lion v. McNeill. The issue in McNeill is whether the testimony of an expert may be excluded at trial based on a disclosure made during discovery in response to interrogatories, that has neither been claimed nor determined to be a discovery violation, but that is challenged at trial as deficient for failing to provide information as required by Maryland Rule 2-402(f)(1)(A).

2022 Update: This case ended up being more often cited than I thought. 

Facts of Food Lion v. McNeill

Here, Plaintiff designated Dr. Edwin C. Fulton to testify as an expert witness in a trial in front of Judge Pamela L. North in Anne Arundel County, Maryland. Dr. Fulton was expected to testify that Food Lion employee Daniel McNeill suffered from “pain and numbness in his hands and pain radiating from his elbows” and was subsequently diagnosed with bilateral carpal tunnel syndrome and right cubital tunnel syndrome. He intended to testify that these injuries resulted from McNeill’s employment as a meat cutter at the Glen Burnie Food Lion (not sure if was Crain Highway or Baltimore-Annapolis Boulevard). (Funny footnote: the most searched term for this post is Food Lion Crain Highway.  All the thought went into this blog and people are finding that!)

During the pre-trial discovery process, Defendant asked the standard interrogatory of McNeill’s counsel, requesting the names of those people he might expect to act as expert witnesses, the subject on which they would testify, the substance of each expert’s findings and opinions, and a summary of the grounds upon which each opinion was based.

In response to this interrogatory, McNeill’s attorney provided a one-sentence letter from Dr. Fulton stating that Dr. Fulton believed Mr. McNeill’s injuries resulted from his repetitive meat-cutting duties at Food Lion. Although this information did not include any grounds upon which the opinion was based, the defendant’s attorney made no challenges or objections to it during the time of discovery.

Maryland Rule 2-402

Obviously, the spirit of Rule 2-402 is to provide some indication of the expected testimony of the experts, at least. After sitting on this deficiency in discovery, Food Lion’s lawyers moved to disallow Dr. Fulton’s testimony since, during the discovery process, Maryland Rule 2-402 requires an expert witness to provide not only his or her opinion but also the grounds upon which it is based. Specifically, they argued that the opinion stated that his conditions related to his work as a meat cutter and not whether his job duties caused his injury. Judge North agreed with the defendant’s attorney and barred Dr. Fulton’s testimony, which killed Plaintiff’s case. Plaintiff appealed.

The procedure here was unusual. An en banc panel of the Circuit Court reversed Judge North’s decision. Food Lion timely noted an appeal to the Court of Special Appeals. The Court of Appeals, on its own motion, granted certiorari before it reached the CSA. See Food Lion v. McNeill, 380 Md. 232, 844 A.2d 428 (2004).

  • Glen Burnie accident attorney:  For the majority of Miller & Zois’s 20-year history (as of 2022) our office was in Empire Towers in Glen Burnie.  Our law firm still handles scores of personal injury cases in Glen Burnie.
  • In 7222 Ambassador Rd., LLC v. Nat’l Ctr. on Insts., an unreported 2019 opinion, Judge Berger underscored the limitations for lawyers relying on Food Lion when they do not perform basic discovery obligations.  “In this case, unlike Food Lion, Landlord never responded to Tenant’s interrogatories, nor did Tenant respond to Landlord’s multiple attempts to communicate regarding the missing interrogatory responses. Unlike the appellee in Food Lion…”  the Landlord was “was well aware of its failure to respond to interrogatories. Landlord’s reliance on Food Lion is, therefore, misplaced.”
  • Along those lines, here is a medical malpractice case that failed because of discovery deficiencies
  • In Maryland in 2021, if a personal injury lawyer in my office says “The Food Lion case”, we mean this case. This case because a key case on the question of when you can raise discovery objections.  Nationally, they mean this famous 1st Amendment 4th Circuit case.

Maryland Court of Appeals Opinion in Food Lion

The Court of Appeals agreed with the en banc panel that Defendant should not be permitted to wait to raise the discovery deficiency at trial, finding that a “party who answers a discovery request timely and does not receive any indication from the other party that the answers are inadequate or otherwise deficient should be able to rely upon, for discovery purposes, on the absence of a challenge as an indication that those answers are in compliance, and, thus not later subject to challenge as inadequate and deficient when offered at trial.”

Specifically, the Court addressed Food Lion’s attorney’s argument that he did not object to the form of the answer that the appellee gave to its discovery request and wanted only to test the sufficiency of the basis of the appellee’s expert’s opinion. As of that time, it was under no obligation to challenge the appellee’s answer or take the appellee’s expert’s deposition, notwithstanding his belief that the appellee had violated discovery.

The Court responded that this will take Maryland “to the time when non-disclosure was the order of the day and disclosure was not encouraged and when discovery was an obstacle course.”

My Take on This Anti-Sandbagging Case

I agree with this holding from the Court of Appeals. Fair play dictates that personal injury lawyers in Maryland may not sandbag the opposing party with discovery deficiencies that can be easily remedied and then raise the deficiencies at trial. I think the Maryland Court of Appeals agreed that this elevates form or substance which is not the purpose of the Maryland Rule of Procedure and the Maryland Rules of Evidence.

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2 responses to “Food Lion v. McNeill and Discovery Objection Timing”

  1. Tony says:

    I’m surprised that this case made it all the way to the CA. I thought it was self-evident that trial is way too late to raise what is essentially a discovery objection — who knew there was an undecided issue here? Furthermore, framing the argument as concerning the sufficiency of the evidence seems a little lame to me as well. Presumably, the doctor testified at length during trial which makes the one-sentence summary in the answers to interrogatories beside the point. Even in district court, I don’t think a judge should entertain a complaint about discovery unless the complaining party did something to preserve the issue, i.e. send a letter asking for supplementary responses, and a motion following on it. Then the discovery issue can be resolved at the outset of the trial, as necessary.

  2. Ron Miller says:

    Tony, I think the argument is that the expert cannot testify to anything beyond what is in his reports and his designation. Couldn’t Defendant reasonably argue that he can only tesify to the letter of what he has provided, a la the Federal Rules? Those Rule 26 disclosure requrirement can be awful harsh.

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