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TO: Rudy Chounourne, Law Clerk to The Honorable Eric M. Johnson FROM: Adaeze A. Onwuzuruike RE: Morales Vs.

Onyewu, M.D DATE: 11/02/2011 I. Parties & Counsel

Jacemyein Morales Plaintiff/Appellant Attorney(s): John W. Stupak

Chukwuemeka Onyewu, M.D. Defendant/Appellee Attorney(s): Larry D. McAfee Benjamin S. Salisbury

II.

Facts

On December 18, 2007 at the Premier Surgery Center of Washington D.C, the Defendant Chukwuemeka Onyewu performed an abdominal liposuction and a buttock augmentation on the Plaintiff Jacemyein Morales, where he transferred some fat from the Plaintiffs abdomen and injected it into her buttocks. After the buttock augmentation, the right buttock implant developed an infection. On January 10, 2008 the Defendant prescribed antibiotic Cipro 500mg for the Plaintiffs right buttock infection. On February 4, 2008 the Defendant removed the Plaintiffs right buttock implant as the infection continued, then replaced it on March 4, 2008. On March 17th, 2008 the Plaintiffs buttock implants showed signs of infection again and the Defendant surgically removed them in his Montgomery County Office, Maryland. On March 24 2008, the Plaintiff and Defendant were informed by Samir Shureith M.D, that laboratory results indicated that bacteria cultured from the Plaintiffs buttock was Methicillin-Resistant Staphylococcus Aureus 1. The Plaintiff was admitted to the Washington Hospital center through the emergency room to receive IV antibiotics for the treatment of the Staphylococcus infection. On May 2, 2008 the Defendant performed a debridement and closure of the open wound, which resulted from the Defendants March 17th surgical removal of the buttock implants in his Montgomery County Office, Maryland. On April 7, 2011 the Plaintiff filed a complaint (#346179-V) alleging multiple breaches of the standard of medical care by Defendant Onyewu, and that his acts of negligence were the proximate cause of her methicillin-resistant staphylococcus aureus (MRSA) infection, inability

for her surgical wounds to heal, and significant scarring. A scheduling order was issued, and a hearing date including deadline for Plaintiff to identify expert witnesses, was set to July 8, 2011. On July 8, 2011 both parties appeared before the court for hearing. Plaintiff had not designated expert witnesses for identification. Upon the Defense counsels request, Plaintiff sent a fax with the address and curriculum vitae of Samir F. Shureih M.D, and only the address of Navin Singh, M.D. On July 14, 2011 at 3:25pm, Plaintiffs counsel then faxed the CV for Navin Singh, M.D and sent a message to the Defense counsel;
Dear Mr. Salsbury: Here is the CV of Navin Singh, MD, the other expert in Morales.

At 3:44pm, the Defense counsel responded after receiving the fax;


Thank you for the CVs and the Certificate, but I need a formal designation of your experts including their full standard of care and causation opinions as required by Maryland Rule 2-402(e)(1) and the scheduling order. Can we receive this by early next week.

On July 15, 2011 Plaintiffs counsel replied to the Defense counsels above response;
Dear Mr. Salsbury: Yes.

On July 16, 2011 Plaintiffs counsel signed the Answers to Defendants Interrogatories questionnaire and then on July 18, 2011 signed for its prepaid postage. On September 1, 2011 Defendant Onyewu filed a motion against Plaintiff Morales for failure to comply with Maryland Rule 2-402, and a motion for summary judgment. III. Movants Argument (Onyewu, M.D) A. Motion for sanctions for failure to comply with Maryland Rule 2-402 1. Failure to properly designate expert witnesses Defendant argues that the deadline imposed by the court under the scheduling order for the Plaintiff to provide information relative to expert witnesses was July 8, 2011. He cites that Maryland Rule 2-402(f)(1) requires the following information be provided to the Defense counsel:
Maryland Rule 2-402(f)(1) each person, other than a party, whom the other party expects to call as an expert witness at trial; to state the subject matter on which the expert is expected to testify; to state the substance of the findings and the opinions to which the expert is expected to testify and a summary of the grounds for each opinion; and to produce any written report made by the expert concerning those findings and opinions.

The Defendant continued to argue that the Plaintiff did not fully provide the information required by the above rule and have tried to resolve the dispute with the Plaintiff on two separate occasions. According to the Defendant, the Plaintiff only provided the names and CVs of the purported experts without giving information regarding their opinions or the summary and grounds for them. And as a result, she did not comply with Maryland Rule 2-402.

2. Preclusion of experts as a sanction The Defendant stated that the Plaintiffs repeated failures to comply with Maryland Rule 2-402(f)(1), warrants the Courts imposition of a sanction precluding the Plaintiffs expert witnesses from testifying at trial. The Defendant cited Maryland Rule 2-433 as guidance for trial judges when ordering sanctions for failure to comply with rules of discovery.
Maryland Rule 2-433 (2) An order refusing to allow the failing party to support or oppose designated claims or Defenses, or prohibiting that party from introducing designated matters in evidence

The Defendant justifies the use of Maryland Rule 2-433 for failure to comply with Rule 2-402(f)(1) by mentioning its use in the Maryland Court of Appeals case Rodriguez v. Clarke, 400 Md. 39, 60-61 (2007). The Defendant explained that in Rodriguez, the Plaintiff provided a sparse designation of witnesses that included only the experts names and addresses. Maryland Rule 2-433 was imposed where the Court affirmed the trial courts decision to preclude all of the Plaintiffs experts. Defendant therefore concluded that the Court should sanction Plaintiff in the instant case by precluding her experts as her designation suffers from the same deficiency in Rodriguez. B. Motion for summary judgment The Defendant argues that in medical negligent cases, the decisions that a jury must make regarding standard of care and causation cannot be understood by a layperson without the assistance of expert testimony. The Defendant cited the cases of Rodriguez v. Clarke and Aventis Pasteur, Inc. v. Skevofilax as evidence in the courts of the State of Maryland, that the Plaintiff cannot establish a prima facie case of medical negligence to overcome summary judgment, without producing expert testimony on the issues of negligence and causation. Defendant continued to explain that this instant case is a quintessential medical malpractice case in terms of the complexity of the medical terms. Therefore without expert testimony, Plaintiff cannot prevail as a matter of law, and summary judgment must be granted. IV. Respondents Argument (Morales)

Plaintiff argues that she designated medical experts who are prepared to testify as to the Defendants negligence. She asserted that she provided the subject matter on which the expert is expected to testify, the substance of findings and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, and produced written report made by the expert concerning the findings and opinions. The Plaintiff responded that the Defendant is not entitled to judgment as a matter of law because on July 18th 2011; her Answers to the Defendants Interrogatories #18 and the Certificate of Merit & report from Navin Singh M.D, comply with the requirements of Maryland Rule 2-402.

V.

Analysis

Maryland Rule 2-402 requires parties to properly designate their experts, providing information including; the subject matter that each individual (not collective) expert is expected to discuss, the significance of the matter, each expert's unique opinion, and grounds for it. The Plaintiff only provided the names, addresses and CVs of her expert witnesses on the court's imposed deadline July 8, 2011. If Plaintiff couldn't provide all the required information by the deadline, she should have asked court permission for a modification, as indicated by the scheduling order;
'...any modifications...must be requested...in advance of the deadlines...providing good cause to justify any modification thereof.'

She did not do the above and therefore did not comply with the rules of discovery. In the Plaintiff's response to the Defendant's motion, she stated that her Answers to the Defendant's Interrogatories on July 18 2011 (signed July 16) and a written report from Dr. Singh, complies with the requirements of Maryland Rule 2-402. The Plaintiff provided the names and addresses of two experts, Dr. Navin Singh and Dr. Samir Shureih, but only produced a report from Dr. Navin Singh. It is difficult to establish whether the Plaintiff plans to also designate Dr. Shureih as another expert witness in court. She did not fully comply with the part of the Maryland Rule 2-402:
each person, other than a party, whom the other party expects to call as an expert witness at trial; to state the subject matter on which the expert is expected to testify; to state the substance of the findings and the opinions to which the expert is expected to testify and a summary of the grounds for each opinion; and to produce any written report made by the expert concerning those findings and opinions.

Because she did not provide the complete information required in the case of Dr. Samir, she should be precluded from allowing him to give expert testimony. Under Interrogatory #18(c), the Plaintiff also gave Answers to the grounds of opinions of her experts regarding the findings of the case. However, the Plaintiff did not distinguish which opinion belongs to which expert; Dr. Singh or Dr. Shureih. Maryland Rule 2-402 requires:
each person, other than a party, whom the other party expects to call as an expert witness at trial; to state the subject matter on which the expert is expected to testify; to state the substance of the findings and the opinions to which the expert is expected to testify and a summary of the grounds for each opinion; and to produce any written report made by the expert concerning those findings and opinions.

The instructions under Interrogatory #18(c) clearly asked for each opinion, not a collective opinion. The Plaintiff did not satisfy the requirements of Interrogatory #18 and did not fully comply with Maryland Rule 2-402. She should have the testimony of both experts precluded. Lastly, without the ability to provide expert testimony, the Plaintiff still had an opportunity through Interrogatories #20 and #20(d) to provide written evidence published from an article, treatise, textbook, or any publication in the medical field, with which the Jury might use as a measure against breach of care. However, the court deadline for providing written discovery was November 16, 2011. As required in Interrogatory #20, the Plaintiff did not state

how any of the publications she listed established an applicable standard of care and treatment, and she also did not state where the publications were published. As required in Interrogatory #20(d), the Plaintiff did not also provide the present location of any of her listed publications or copies of them. The Plaintiff did not satisfy all the necessary requirements for providing written evidence by the court imposed deadline and so cannot use such evidence to support her designated claims. VI. Conclusion

The Plaintiff failed to comply with Maryland Rule 2-402 by not properly producing expert witness by the required deadline 07/08/2011 and not properly producing written evidence by the required deadline 11/16/2011. Plaintiff should be precluded from producing expert testimony and introducing written evidence to support or oppose her claims or defenses at trial. VII. Recommendation

Plaintiff Jacemyein Morales should receive a sanction precluding her from producing expert testimony at trial through Maryland Rule 2-433:
An order refusing to allow the failing party to support or oppose designated claims or Defenses, or prohibiting that party from introducing designated matters in evidence

Therefore in this case, the court should grant summary judgment in favor of the Defendant Chukwuemeka Onyewu M.D, as a matter of law.

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