Lowery v. Smithsburg Ems

920 A.2d 546

173 Md. App. 662

Robert LOWERY, Jr. et ux. v. SMITHSBURG EMERGENCY MEDICAL SERVICE et al.

No. 344, September Term, 2006.

Court of Special Appeals of Maryland.

April 5, 2007.

Michael P. Coyle, Columbia, for appellant.

Thomas V. McCarron, Baltimore, Steven R. Migdal, Annapolis, for appellee.

Panel DAVIS, EYLER, DEBORAH S. and CHARLES E. MOYLAN, JR. (retired, specially assigned), JJ.

DAVIS, J.

Appellants, Robert R. Lowery, Jr. and Amanda Lowery,¹ appeal from a judgment entered by the Circuit Court for Washington County, Maryland in favor of appellees, Smithsburg Emergency Medical Services (SEMS) and Robert Myerly (Myerly).²

This case involves allegations of defamation and intentional interference with economic relations claims. At the close of appellants' case, appellees moved for judgment on all counts and the trial court granted the motion pursuant to Maryland Rule 2-519 on the defamation and intentional interference with economic relations claims. Appellants noted this timely appeal and posit the following issues for our review:

1. Did the trial court err in granting [a]ppellees' Motion in Limine and precluding any testimony whatsoever pertaining to lost wages and benefits for supposed discovery violations?

2. Did the trial court apply the wrong standard of proof with regard to [a]ppellees' motion for judgment pertaining to forfeiture of the conditional privilege afforded employers for statements made about a former employee's job performance?

3. Did the trial court err in finding there was not sufficient evidence to prove that the conditional privilege afforded statements made about an individual's employment had been forfeited in this case for the matter to be submitted to the jury?

4. Did the trial court err in finding that there was not sufficient evidence to prove that Mr. Myerly acted intentionally and willfully for Mr. Lowery's intentional interference with economic relations claim to be submitted to the jury?

FACTUAL BACKGROUND

Appellant worked for SEMS from January to July in 2001 as a part-time paramedic. On July 2, 2003, appellant applied to the Federal Bureau of Investigation (FBI) for a job as a Physical Security Specialist (Hazmat) and indicated "Spouse new job" [sic] as the reason for leaving SEMS.

On July 17, 2003, the FBI conditionally offered appellant the position with a GS-11 salary base of $42,976 and additional locality pay provided he passed "a background investigation, preemployment polygraph examination, and urinalysis drug test." Appellant was to be notified if a physical examination was also required. To facilitate the investigation, appellant signed an "Authority to Release Information" form provided by the FBI and the FBI commenced a background investigation. Subsequently, the FBI, by letter dated November 21, 2003, rescinded the conditional offer of employment to appellant because some "information that was developed concerning [appellant's] employment history with [SEMS], indicate[d] that [appellant] may not be suitable for employment with the FBI."

In addition to a SEMS former supervisor and co-worker (e.g. appellee) who failed to recommend appellant to the FBI, the special investigator's report, obtained by appellant from the FBI, listed three references who recommended that appellant be hired and two former supervisors who recommended against appellant obtaining FBI employment. Another former supervisor and co-worker told the special investigator that appellant expressed dissatisfaction with supervision.

On October 15, 2004, appellant filed a six-count complaint for Defamation, Tortious Interference with a Contract, Tortious Interference with a Prospective Contract, Tortious Interference with an Economic Relationship, Tortious Interference with a Prospective Economic relationship and Loss of Consortium. SEMS and appellee filed their answers on the 12th and 14th of January, 2005, respectively.

Appellant answered appellees' interrogatories on March 24, 2005. Interrogatories numbers six and seven requested that appellant "[s]tate the names and addresses of all experts whom you propose to call as witnesses at the time of trial. . . ." and that he "[i]temize all damages being and/or to be claimed at trial, the amount for each type of damage, the factual basis in support of each itemized damage, the identities of all individuals with such knowledge, and all documents supporting [appellant's] response." Appellant answered interrogatory number six, stating "[appellant has] not yet retained any experts." He answered number seven by stating that he would claim $1.1 million in lost future pay and benefits basing his lost wages "on his current salary of approximately $24,000 per year" that he received as disability income from his job as a firefighter at BWI Airport. Appellant based his calculations as to FBI pay on his conversations with his purported future supervisor at the FBI, Charles Onesko (Onesko).

The trial court established a scheduling order on July 26, 2005 that required all experts be named by August 6, 2005 and all discovery be completed by November 25, 2005.³ Appellants named Dr. Richard Edelman (Edelman) as an expert to render an opinion in regard to future lost wages on August 5, 2005 and expected to receive information from deposition of Onesko for Edelman's opinion. Appellant was unsuccessful in deposing Onesko and filed a motion to reopen discovery on January 27, 2006, which the trial court denied on February 2, 2006.

As the result of an injury at his job as a firefighter with BWI, appellant received disability payments from the Injured Worker's Insurance Fund (IWIF). At deposition on May 19, 2005, appellant stated that he believed the payments to be "$25,000 a year." On December 13, 2005, appellant received notice that he would receive disability retirement benefits in the amount of $2,353.16 per month for the remainder of his life.

Appellant forwarded to appellees, on March 14, 2006, an IWIF form indicating that he received $562 per week in 2005, the December 13, 2005 notice of disability retirement and a letter from IWIF discontinuing his benefits due to the December disability retirement determination. Appellant sent Edelman's report to appellees the following day.

The court ordered all motions in limine to be filed by March 22, 2006 and appellees filed a motion to exclude appellants' expert as having been untimely designated after the time provided therefore in the discovery schedule had expired. The trial court granted the motion on March 23, 2006 and trial commenced on March 27, 2006 and lasted through March 28th. Appellees moved for judgment after the conclusion of appellants' evidence and the motion was granted on March 30, 2006. Appellant filed this timely appeal on April 20, 2006. More facts will be provided as necessary.

LEGAL ANALYSIS

MOTION IN LIMINE

Appellant initially argues that the trial judge abused his discretion by granting the motion in limine to exclude Edelman's report reasoning that, even if the report was filed after the discovery deadline, that, in and of itself, was no basis for excluding the report. The scheduling order, he maintains, required only that "[appellants'] experts shall be designated by August 6, 2005" and Edelman was timely disclosed as an expert who would perform a lost wages analysis. The order did not require an expert report. Appellant points out that he provided through interrogatories that Edelman would perform the analysis based upon what appellant was then earning through disability and his expected earnings at the FBI. Additionally, the only disclosure outside the discovery period pertaining to appellants' expert was the production of the expert report. At most, therefore, the trial judge should have only excluded it.

In their reply brief, appellants argue that Food Lion, Inc. v. McNeill, 393 Md. 715, 904 A.2d 464 (2006), is directly on point with the case at hand. The issue in Food Lion was

whether the testimony of an expert may be excluded at trial on the basis of 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).⁴

The Court in Food Lion held that the testimony could not be excluded on that basis. Id. at 717, 904 A.2d 464. Discovery rules do not provide for what expert testimony will be permitted at trial. Id. at 721, 904 A.2d 464. That matter is addressed expressly in Title 5 of the Rules. Id. Rule 5-702 provides:

Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

Id. (quoting Md. Rule 5-702).

In Food Lion, McNeill answered interrogatories propounded before the discovery deadline and listed his expert therein. Food Lion, 393 Md. at 724, 904 A.2d 464. He attached the expert's report and subsequently forwarded a letter indicating that the expert attributed McNeill's injuries to his job. Id. On the day of trial, Food Lion made a motion to prohibit the expert's opinion on the grounds that the "one sentence" letter was insufficient to provide a basis for the expert's opinion. Id. at 725, 904 A.2d 464. The motion was filed twenty days after the trial court asked for all motions. Id. at 726, 904 A.2d 464. The trial court employed a Rule 5-702 analysis, concluding that the one sentence report from the expert would not be adequate to sustain the burden of proof as there was no medical conclusion. I...