Sheppard v. Geneva Rock
Supreme Court of Utah
February 17, 2021, Heard; July 15, 2021, Filed
No. 20190363

Reporter
2021 UT 31 *; 2021 Utah LEXIS 86 **; 2021 WL 2979721
CAROL SHEPPARD, Appellant, v. GENEVA ROCK, GENEVA ROCK PRODUCTS, INC., and DAVID DALBY, Appellees.
Prior History: [**1] On Direct Appeal. Third District, Salt Lake. The Honorable Heather Brereton. No. 160904293.

JUSTICE PEARCE, opinion of the Court:

INTRODUCTION
[*P1] A truck hit Carol Sheppard’s vehicle as she was driving on I-15.1 The truck’s driver, David Dalby, worked for Geneva Rock. Sheppard brought a complaint against both Dalby and Geneva Rock alleging that Dalby’s negligence had caused the crash. Sheppard also alleged that Geneva Rock had negligently employed Dalby and shared some fault for her injuries. Geneva Rock conceded that Dalby was at fault for the collision and then moved to exclude all evidence of negligence: both Dalby’s and its own. The district court excluded the evidence of negligence and negligent employment.
[*P2] Trial proceeded solely on the issue of damages. After Sheppard rested her case-in-chief, the district court ruled that the jury could not award special [**2] damages to Sheppard because she had produced insufficient evidence of those damages. The jury returned a general damages verdict of $30,000. The district court then granted Geneva Rock’s renewed motion for judgment as a matter of law and vacated the jury’s verdict. The court reasoned that Sheppard failed to produce evidence sufficient to meet the requirements that Utah Code section 31A-22-309 puts in place for plaintiffs seeking general damages in certain cases.
[*P3] Sheppard argues that the district court erred when it: (1) overturned the jury’s general damages verdict; (2) found that Sheppard had introduced insufficient evidence to permit the jury to consider special damages; and (3) concluded that the law required it to exclude evidence of Geneva Rock’s negligent employment of Dalby. We reverse and remand.

BACKGROUND
[*P4] While driving on I-15 in July of 2012, Sheppard heard a loud bang. Her car spun and Sheppard found herself facing the wrong way in the middle of the freeway. She couldn’t open the driver’s side door. Sheppard climbed over her center console and exited on the passenger’s side. As she climbed out, she felt a severe pain in her back. An ambulance transported her to an emergency room where she received [**3] stitches for a cut she sustained on her arm.
[*P5] At the emergency room, Sheppard was diagnosed with “left flank and abdominal contusion.” Later that month, her primary care physician diagnosed her with lower back strain. In the following year, Sheppard received treatment for lower back pain from a chiropractor and two courses of treatment from physical therapists.
[*P6] A year after the crash, Sheppard relocated to Virginia. There, she sought treatment for her back from two different primary care clinics and a physical therapy clinic. That treatment continued through October 2015. The physical therapy clinic, operated by a therapist named Scott Roberts, charged her more than $65,000.
[*P7] Although Sheppard had occasionally experienced back pain before the collision, a review of her medical records showed that she did not complain of back pain or receive treatment for it before the collision.
[*P8] Geneva Rock employed Dalby, the truck driver who struck Sheppard’s car. A witness to the collision reported that Dalby was “making a turn into [Sheppard’s] lane” and “actually crossed into that lane and made connection with her vehicle at that point.”
[*P9] Sheppard alleges that Dalby was accused of violating driving [**4] laws many times prior to the accident. Geneva posted safe driving stickers on its trucks that provided a number for motorists to call if they saw a Geneva Rock driver engage in unsafe driving. On at least eight separate occasions, Geneva Rock had received reports that Dalby ran red lights or stop signs, drove too fast for the conditions, wove in and out of traffic, failed to use signals, made improper lane changes, tailgated, failed to stay in his lane, or was otherwise discourteous.2
[*P10] On another occasion, Geneva Rock sent Dalby home when a random drug and alcohol test revealed that he had arrived to work with a blood alcohol content of .029. Dalby received a verbal warning from Geneva Rock for that offense.
[*P11] Within hours of the crash with Sheppard, Geneva Rock tested Dalby for alcohol, but Geneva Rock lost the test results. Geneva Rock later determined that Dalby was at fault for the accident and suspended him without pay, initially for five days, but then reduced it to four.3
[*P12] While Dalby drove for Geneva Rock, Geneva Rock provided an incentive program for its drivers. The program tracked how many tons of material drivers moved for the company and compiled that into an “efficiency” score. [**5] Dalby received the highest efficiency score in the company several times.4
[*P13] Sheppard filed a complaint alleging that Dalby’s negligent driving injured her. She also alleged that Geneva Rock negligently employed Dalby by failing to adequately supervise and train him. Dalby and Geneva Rock initially denied Sheppard’s complaint in its entirety. They also alleged that Sheppard’s fault for the accident was as much as, or more than, their own.
[*P14] Ten months after the end of fact discovery and near the eve of trial, Geneva Rock and Dalby admitted liability for the accident. Two days before trial was set to begin, the district court ruled that all evidence of defendants’ negligence was irrelevant because Geneva Rock had admitted that Dalby was negligent and that respondeat superior made Geneva Rock liable for Dalby’s negligence. Among other things, the district court barred the admission of the evidence Sheppard had collected about Dalby’s seemingly checkered driving record and Geneva Rock’s efficiency incentive program.
[*P15] The parties proceeded to trial with damages as the only issue. Sheppard took the stand and described the crash, the pain she felt in her back, the cut she received on her arm, [**6] and the scar that the cut left behind. Sheppard recounted her treatment history following the collision, beginning with her emergency room visit immediately following the crash and extending to the physical therapy Roberts provided after she moved to Virginia.
[*P16] During trial, Sheppard called an expert witness, Dr. Erekson, a physical therapist. Erekson testified that Roberts had billed Sheppard roughly $65,000 for physical therapy. In response to questioning, Dr. Erekson opined that, of that amount, only $28,685 was “justified.”
[*P17] After Sheppard rested her case, Geneva Rock moved for judgment as a matter of law. Geneva Rock argued that Sheppard had not introduced sufficient evidence to allow the jury to award general or special damages.5
[*P18] With regard to special damages, Geneva Rock argued that Sheppard had not introduced sufficient evidence of her medical expenses to recover the expenses as special damages, because she had not introduced medical records. And, in the same vein, Geneva Rock argued that Sheppard had not provided evidence that the accident with Dalby caused the injuries for which she sought treatment—also preventing an award of special damages.
[*P19] Geneva Rock further contended [**7] that Sheppard could not seek general damages because she did not satisfy the requirements of Utah Code section 31A-22-309 (the Personal Injury Protection statute or PIP statute). HN2[ ] The PIP statute requires that, in certain circumstances, plaintiffs must prove that they have suffered one of six categories of damages before they can ask for an award of general damages.6
[*P20] Sheppard argued that she met the PIP statute’s requirements in two ways. She pointed to testimony concerning the medical bills she had incurred—bills that far exceeded the $3,000 that the PIP statute requires. She also contended that she had suffered a “permanent disfigurement” evidenced by a small scar that resulted [**8] from the cut she had sustained in the accident.
[*P21] The district court partially granted Geneva Rock’s motion for judgment as a matter of law. The court allowed the case to go to the jury on the issue of general damages. But the court found that Sheppard had not introduced sufficient evidence supporting a claim for special damages.
[*P22] The jury returned a verdict for Sheppard and awarded her $30,000 in general damages. Defendants promptly renewed their motion for judgment as a matter of law. The district court granted the motion, concluding that Sheppard had not produced evidence satisfying any of the PIP statute’s threshold criteria. Sheppard appealed.
[*P23] On appeal, Sheppard requests alternative forms of relief. Sheppard asks that we reinstate the jury’s general damages verdict. Alternatively, she asks us to give her a new trial if we decide that the district court improperly prevented her from seeking special damages. She also asks us to grant her a new trial if we find that the district court improperly excluded evidence of Geneva Rock’s negligent employment. We conclude that Sheppard is entitled to a new trial because the district court erred when it granted the renewed motion for judgment [**9] as a matter of law. Because the issues might reemerge on remand, we hold that the district court erred when it excluded evidence of Geneva Rock’s negligence and when it concluded that Sheppard had failed to qualify for general damages under the PIP statute.

STANDARD OF REVIEW
[*P24] Sheppard argues that the district court erred when it granted Geneva Rock’s motion for judgment as a matter of law on her claim for special damages. HN3[ ] “This [c]ourt’s standard of review of a [judgment as a matter of law] is the same as that imposed upon a trial court.” Gables at Sterling Vill. Homeowners Ass’n, Inc. v. Castlewood-Sterling Vill. I, LLC, 2018 UT 04, ¶ 21, 417 P.3d 95 (first alteration in original) (citation omitted). “A trial court is justified in granting a [judgment as a matter of law] only if, examining all evidence in a light most favorable to the non-moving party, there is no competent evidence that would support a verdict in the non-moving party’s favor.” See id. (citation omitted). So, as with a judgment as a matter of law following a renewed motion under Utah Rule of Civil Procedure 50(b), we will affirm a judgment as a matter of law under rule 50(a) only if there is “no competent evidence” to support Sheppard’s claims. See id. (citation omitted).
[*P25] Sheppard also asks us to reverse the district court’s decision to grant Geneva Rock’s renewed judgment [**10] as a matter of law that vacated her award of general damages. HN4[ ] In reviewing a trial court’s denial of a motion for judgment as a matter of law or a renewed motion as a matter of law “on the basis of insufficiency of the evidence, ‘we follow one standard of review: We reverse only if, viewing the evidence in the light most favorable to the prevailing party, we conclude that the evidence is insufficient to support the verdict.'” Brewer v. Denver & Rio Grande W. R.R., 2001 UT 77, ¶ 33, 31 P.3d 557 (citation omitted).
[*P26] Finally, Sheppard contends that the district court erred when it granted Geneva Rock’s motion in limine to exclude all evidence of negligence, a holding that implicitly invokes Utah Rule of Evidence 402.7 HN5[ ] We typically “review the admissibility of evidence under rule 402 for an abuse of discretion.” Wilson v. IHC Hosps., Inc., 2012 UT 43, ¶ 24, 289 P.3d 369. But we have noted that,
[w]hen district courts have discretion to weigh factors, balance competing interests, or otherwise choose among a range of permissible approaches or outcomes, those discretionary determinations must rest upon sound legal principles. For that reason, when a legal conclusion is embedded in a district court’s discretionary determination, we peel back the abuse of discretion standard and look to make sure that the court applied the correct law.
State v. Boyden, 2019 UT 11, ¶ 21, 441 P.3d 737. Here, the district [**11] court’s order rested on its legal conclusion that Utah law prevents Sheppard from introducing evidence of Geneva Rock’s and Dalby’s negligence after they admitted liability. HN6[ ] We review that legal conclusion for correctness. See id.

ANALYSIS
I. SHEPPARD WAS ENTITLED TO ASK THE JURY TO AWARD SPECIAL DAMAGES
[*P27] Sheppard claims that the district court erred when it granted Geneva Rock’s motion for judgment as a matter of law on her claim for special damages. The district court reasoned that Sheppard had failed to produce sufficient evidence of those damages to permit a jury to rule in her favor.
[*P28] It appears the district court was persuaded by Geneva Rock’s argument that Sheppard had failed to demonstrate that the accident had caused her to incur the medical bills she introduced at trial. Geneva Rock argued that “there’s an element of causation that’s still remaining to be proved here.” “That element is not did the accident happen, it’s did this accident cause the injury.” [**12] Pointing to the lack of expert testimony on causation, Geneva Rock contended that, under Utah law, “only [in] the most obvious cases is counsel exempted from the requirement of putting forth expert testimony to establish causation.”
[*P29] Sheppard acknowledged that she had not called an expert to testify concerning causation, but she argued that she satisfied the “common knowledge exception when it goes to causation.” That is, she contended that causation was in the common knowledge of the jury and, therefore, she was not required to call an expert to opine that a car crash could cause back pain requiring medical treatment.
[*P30] The district court granted the motion with respect to special damages. The court explained,
My ruling is that it is within the common knowledge that the crash caused the injuries that [Sheppard] testified to. Where I depart from that is that you’ve put into evidence a course of treatment that occurred two years later [from Roberts] without anyone testifying that that treatment was necessitated by the injury. And that’s where the distinction lies. So I do think that it’s not within the common knowledge and experience of a jury that dry needling and 91 sessions with a physical [**13] therapist and the type of treatment that was provided by Mr. Roberts . . . was required to treat the injury. That’s not within anyone’s common experience.
In other words, the district court concluded that a jury would commonly know that a car accident could cause injuries inflicting back pain which could require some treatment or medical attention soon thereafter, but that a jury would not commonly know that treatment received two years later was a result of that accident. The district court also appears to have concluded that Sheppard lacked evidence that, even if the accident caused the injury, some of the particular treatments she received were required to treat that injury. And that knowledge of what treatments are necessary for lower back pain is not within the common understanding of a jury.
[*P31] HN7[ ] Under Utah law, “once injuries have been shown, evidence is required to show that the medical expenses accurately reflect the necessary treatment that resulted from the injuries and that the charges are reasonable.” Gorostieta v. Parkinson, 2000 UT 99, ¶ 35, 17 P.3d 1110. It is, of course, the plaintiff’s burden to produce this evidence. See id. ¶ 35 n.8. But we have held that expert testimony is not necessarily required to prove that a particular injury [**14] caused certain damages when the link between injury and treatment “would be clear to a lay juror who has no medical training—i.e., when the causal connection is readily apparent using only ‘common knowledge.'” Bowman v. Kalm, 2008 UT 9, ¶ 9, 179 P.3d 754. When causation falls within this common knowledge exception, a court “may excuse a lack of expert testimony in some circumstances.” Id.
[*P32] For example, in Bowman, we considered the claim of a husband whose wife had been killed after a bedroom dresser fell and pinned her to a bed frame. Id. ¶ 3. She asphyxiated under the dresser’s weight. Id. The husband filed suit against his wife’s psychiatrist claiming that the doctor had ignored his wife’s proclivity to “overdose on sleeping medication and to be clumsy due to medication.” Id. ¶ 4. The husband argued that the psychiatrist breached his duty of care when he prescribed her sleeping pills. Id.
[*P33] The husband introduced expert testimony opining that the doctor had breached the standard of care by prescribing a particular medication. Id. But the expert did not opine on whether the psychiatrist’s alleged malpractice was the proximate cause of his patient’s death. Id. ¶ 5. The district court granted summary judgment, noting the lack of “expert testimony establishing [**15] a link between the alleged negligence” and the wife’s demise. Id.
[*P34] We reversed. We concluded that the case fell within the common knowledge exception. We reasoned that the “causal connection between a decedent made clumsy due to a doctor’s negligence, and that decedent’s death due to a dresser being pulled down on top of her, is not one that requires specialized medical knowledge.” Id. ¶ 13. And we noted that the “lack of expert medical testimony is not itself a bar” to the plaintiff’s claims. Id. ¶ 14. But we cautioned that this was “not to say that the evidence adduced so far is necessarily sufficient to prove causation, or that some type of expert testimony might not be helpful on the issue.” Id.
[*P35] Sheppard points to evidence presented at trial that suggests the “causal connection” between the collision, her injury, and the treatment she received is “readily apparent using only ‘common knowledge'” under Bowman and therefore an appropriate question for the jury. See id. ¶ 9. Sheppard testified that she only occasionally experienced back pain before the collision. And Geneva Rock’s expert witness noted for the jury that her medical records showed that she did not complain of back pain or receive treatment [**16] for it before the crash. See supra ¶ 7.
[*P36] Sheppard also testified that she was hit by a truck in a collision so violent she ended up facing the wrong way on the freeway and could not open her driver’s side car door. See supra ¶ 4. She told the jury that when she attempted to exit the vehicle, she immediately felt a pain in her back. See supra ¶ 4. And an expert witness testified that Sheppard went to the emergency room and was diagnosed with low back contusions. See supra ¶ 5.
[*P37] Through the testimony of different witnesses, the jury heard that, from her emergency room diagnosis in July 2012 until the end of her physical therapy in October 2015, Sheppard sought treatment from a variety of providers for pain in her lower back. See supra ¶¶ 4-6. By Sheppard’s account, all these facts show a “reiteration of the treatment that she received . . . [for] that same back pain that she’d been feeling ever since the crash,” creating a “causal link and connection” between the collision and her subsequent treatment.
[*P38] The district court partially agreed. It concluded that it would be within the common knowledge of the jury that the collision could have caused Sheppard to suffer a lower back injury, but [**17] that a jury wouldn’t know whether treatments she received two years later would have been caused by the accident. See supra ¶ 30. We disagree with that assessment.
[*P39] Where, as here, the treatment continues virtually uninterrupted and there is no intervening cause that might suggest another reason for the treatment, it is in the jury’s common knowledge that back injuries can cause pain that persists and requires continued treatment. The jury simply did not need someone with medical training to tell them that back pain resultant from an accident can last. But, much like we did in Bowman, we stress that we are not holding that Sheppard has proven causation; rather, we conclude that the evidence she offered allows the issue to go to the jury without an expert opinion on causation. See Bowman, 2008 UT 9, ¶ 14, 179 P.3d 754 (“This is not to say that the evidence adduced so far is necessarily sufficient to prove causation, or that some type of expert testimony might not be helpful on the issue . . . . It does mean, however, that a lack of expert medical testimony is not itself a bar to [these] claims.”).
[*P40] Geneva Rock argues against this conclusion, claiming that the treatment “was too complex and too far removed in time and space [**18] from the accident for the common knowledge exception to apply.” Geneva Rock supports its argument with Beard v. K-Mart Corp., 2000 UT App 285, 12 P.3d 1015. In Beard, the court of appeals examined the evidence required to prove “the link between the injuries [a plaintiff] suffered and the necessity of the surgeries” she received. Id. ¶ 16. And the court of appeals concluded that the plaintiff needed to present expert medical evidence to connect the surgeries she received on her neck and wrists to the blow to the head she received from a K-Mart employee. Id.
[*P41] We discount Beard’s persuasive value for a pair of reasons. First, the court of appeals decided Beard some eight years before we handed down Bowman. Although Bowman did not expressly repudiate the court of appeals’ conclusion in Beard that “[i]n Utah, in all but the most obvious cases, testimony of lay witnesses regarding the need for specific medical treatment is inadequate to submit the issue to the jury,” we articulated a standard more lenient than “in all but the most obvious cases.” Id. Instead, HN8[ ] in Bowman, we talked about a “limited ‘common knowledge’ exception” which will “excuse a lack of expert testimony in some circumstances.” Bowman, 2008 UT 9, ¶ 9, 179 P.3d 754. And while we acknowledged that expert testimony would [**19] “generally” be required to show proximate causation in medical malpractice cases, we held that “it is not necessary where the causal connection between the breach of the standard of care and the harm suffered is apparent using common knowledge.” Id. ¶ 12. As such, we disregarded Beard’s near-categorical approach in favor of a more fact-dependent inquiry.
[*P42] Second, the causation question in Sheppard’s case resembles Bowman more than Beard. Beard involved a plaintiff who was struck on the head by a K-Mart employee starting a lawnmower. 2000 UT App 285, ¶ 2, 12 P.3d 1015. But the surgeries she based her damages on were performed on her neck and wrist. Id. While Beard complained about wrist and neck pain shortly after the accident, id., the causal connection between an elbow to the head and wrist surgery is not within a jury’s common knowledge. By contrast, Sheppard complained of back pain immediately after the collision and received continued treatment for that pain for years. Much like a jury does not need to be told that a drowsy person can asphyxiate under the weight of a heavy piece of furniture, as in Bowman, the fact that an automobile accident can cause pain that persists is within the jury’s ken.
[*P43] The district court seemed [**20] to have a second rationale for granting Geneva Rock’s motion. The court stated: “I do think that it’s not within the common knowledge and experience of a jury that dry needling and 91 sessions with a physical therapist and the type of treatment that was provided by Mr. Roberts is — was required to treat the injury. That’s not within anyone’s common experience.” Supra ¶ 30. Geneva Rock agrees with the district court and argues that it “is not common knowledge” that Sheppard’s injury would require the kinds of treatment that Sheppard’s last physical therapist provided: “trigger point injections, massage, manipulation therapy, and therapist managed exercises.”
[*P44] This appears to speak not to causation, but to the requirement that a plaintiff introduce evidence “to show that the medical expenses accurately reflect the necessary treatment that resulted from the injuries and that the charges are reasonable.” Gorostieta, 2000 UT 99, ¶ 35, 17 P.3d 1110 (emphasis added). And we agree with the district court and Geneva Rock that this is true with respect to some of the treatments Sheppard received. For example, we can get on board with the conclusion that a jury may need expert testimony to know that trigger point injections would be necessary [**21] to treat Sheppard’s injury.
[*P45] But the jury heard expert testimony on that issue. Dr. Erekson reviewed Sheppard’s medical records and opined that $28,685 of the roughly $65,000 Sheppard had been charged was justified. Dr. Erekson also testified that at least some of the bills that he reviewed could not be justified and reflected treatment that had been “going too far” or for “too long.” Although Dr. Erekson could have been more precise in his testimony, the logical inference from his opinion that he excluded bills for treatments that went too far is that the bills he found to be justified were for treatments Sheppard needed. As a result, Dr. Erekson bridged the evidentiary gap that appeared to trouble the district court.8
[*P46] Sheppard should have been allowed to proceed with her claim for special damages. The causation of her injuries fell within the common knowledge exception and the necessity of the treatments she received was addressed by expert testimony. The jury would have been free to reject her argument for special damages, but the issue was one that the jury should have been allowed to resolve. Sheppard is entitled to a new trial.9
II. THE DISTRICT COURT IMPROPERLY EXCLUDED EVIDENCE [**22] OF GENEVA ROCK’S NEGLIGENT HIRING PRACTICES
[*P47] We could end our discussion of this case with the conclusion that Sheppard is entitled to a new trial because the district court did not permit Sheppard to seek special damages. HN9[ ] We can, however, provide additional guidance on issues that are likely to recur on remand. See State v. Cloud, 722 P.2d 750, 755 (Utah 1986) (explaining that it is “appropriate” for us to address “contentions on appeal that will arise again upon retrial”). The question of whether Sheppard should have been allowed to introduce evidence of Geneva Rock’s and Dalby’s negligence raises just such an issue.
[*P48] Sheppard had sought to admit evidence to establish Geneva Rock’s negligent employment and Dalby’s negligent driving. This evidence included eyewitness testimony that Dalby was driving recklessly the day of the collision. Sheppard had also adduced evidence of Dalby’s extensive history of bad driving, and that he had shown up for work with alcohol in his system. Sheppard also wanted to tell the jury about Geneva Rock’s efficiency incentive program and its lax disciplinary policies. Finally, Sheppard wanted to inform the jury that Geneva Rock failed to produce the drug and alcohol test it administered to Dalby the [**23] day of the collision.
[*P49] Shortly before trial, the district court granted Geneva Rock’s motion in limine to exclude evidence that it negligently employed Dalby and that Dalby drove negligently. Geneva Rock argued that since it had admitted liability, evidence of its hiring practices was irrelevant. The district court bought that argument and concluded that Sheppard could not “present any arguments or evidence, including in opening statements and closing arguments, that relate to liability issues.”
[*P50] The district court gave two reasons for excluding this evidence. First, it opined that the “case law is pretty clear in the absence of punitive damages, when [defendants] admit to liability, that that evidence is not admissible. There’s not a case that’s been presented by the plaintiffs to suggest otherwise.” And, second, “I don’t find the argument regarding differing damages based on the different claims, whether it be negligent employment or negligence in driving to be — I think it is the same measure of damages. Regardless, that damage that was caused by the accident.”
[*P51] Sheppard first argues that we ought to reverse the district court because Geneva Rock’s negligent employment of Dalby caused [**24] her to suffer additional “anxiety and grief.” She contends that this “anxiety and grief” was a kind of “mental reaction to [the] pain” caused by the initial accident. Specifically, she claims that she suffered additional “anxiety and grief” because: she learned that, when motorists reported that Dalby was engaging in extensive inappropriate behavior, Geneva Rock did almost nothing about it; she learned that Dalby showed up to work with alcohol in his system and he was merely sent home with a warning; she learned that Geneva Rock later lost his alcohol and drug test from the day of the collision; and she learned that Geneva Rock engaged in other similar conduct. She therefore argues that she ought to be able to show the jury evidence of the practices that caused her pain and suffering to increase.
[*P52] The district court rejected this argument because it read the case law to be “pretty clear” that “in the absence of punitive damages, when they admit to liability, that that evidence is not admissible.” Although the district court did not specify the case law on which it relied, it was presumably referring to Jones v. Carvell, 641 P.2d 105 (Utah 1982), a case Geneva Rock cited below to support its argument. Geneva Rock argues on appeal [**25] that we should affirm the district court based on Jones.
[*P53] HN10[ ] In Jones, this court held that “the rule is well-established that where liability is admitted, evidence going only to liability, in the absence of a claim of punitive damages, is not admissible.” Id. at 112. The district court overlooked a key difference between Jones and this case. In Jones, we noted that the evidence would have been admitted “only to [prove] liability.” Id. Sheppard wants to introduce this evidence to establish that Geneva Rock’s conduct caused her additional pain and suffering. Supra ¶ 51. Thus, Jones does not speak directly to the question.
[*P54] HN11[ ] As Sheppard notes, “[j]uries are generally allowed wide discretion in the assessment of damages.” (Quoting USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 71, 372 P.3d 629 (alteration in original) (citation omitted)). Within this wide discretion, juries are asked to assess “the difference between what life would have been like without the harm done . . . and what it is like with that additional burden.” Judd v. Drezga, 2004 UT 91, ¶ 4, 103 P.3d 135. The jury attempts to quantify the “diminished capacity for the enjoyment of life” that resulted from a personal injury. Id. The jury is not limited to assessing only physical injuries. Rather, “[t]he pain and suffering for which damages are [**26] recoverable in a personal injury action include not only physical pain but also mental pain or anguish, that is, the mental reaction to that pain and to the possible consequences of the physical injury.” Judd v. Rowley’s Cherry Hill Orchards, Inc., 611 P.2d 1216, 1221 (Utah 1980).10
[*P55] Unlike in Jones, Sheppard did not seek to introduce this evidence only to prove liability. She has a damages theory to which this evidence is arguably relevant. It was error for the district court to use Jones as a basis to exclude the evidence.11
[*P56] The second reason the district court gave for excluding this evidence was that “I don’t find the argument regarding differing damages based on the different claims, whether it be negligent employment or negligence in driving to be — I think it is the same measure of damages. Regardless, that damage that was caused by the accident.” It appears that the district court reasoned that a plaintiff should not be allowed to assert both a claim for negligence and negligent employment because they both arise out of the same accident and therefore implicate the same damages.
[*P57] This was error for two reasons. First, as explained above, Sheppard advanced a theory of damages for her negligent employment claim that, if accepted, would have [**27] entitled her to damages distinct from those she could receive in her negligent driving case against Dalby. See supra ¶ 51.
[*P58] HN12[ ] Second, we have rejected the argument that a plaintiff cannot assert both a negligence and negligent employment cause of action if the employer concedes liability. See Ramon v. Nebo School Dist., 2021 UT 30, P.3d . In Ramon, the plaintiff asserted a negligence claim based on conduct of the driver of a school bus that struck his car, and a negligent employment claim against the school district that Ramon alleged continued to employ the driver even after a multitude of red flags about the driver’s safety record. Id. ¶¶ 3-4. The district court granted a motion to dismiss the negligent employment claim reasoning, among other things, that the school district’s liability was “fixed by the amount of liability of its employee when vicarious liability is admitted, and it cannot be increased by [a] separate negligent employment claim.” Id. ¶ 8.
[*P59] We reversed for a number of reasons. We noted that the Utah Liability Reform Act (the Act) permits a party to seek to have fault allocated to anyone for whom there is a legal or factual basis to assign fault. Id. ¶ 25 (discussing UTAH CODE § 78B-5-819(1)). We also rejected the argument that a plaintiff cannot seek to have [**28] fault allocated between a negligent employee and a negligent employer after the employer admits liability because it would not impact the quantum of damages available to the plaintiff. Id. ¶ 27 n.7. We reasoned that the Act’s plain language permits that allocation. Id. ¶¶ 25-27, 27 n.7. We noted that permitting the plaintiff to have the jury consider the relative faults of the employer, employee, and the plaintiff—and not just the employee and the plaintiff—might alter the jury’s allocation of fault. ¶ 27 n.7. And we emphasized that the legislature might have had non-economic reasons for permitting the allocation of fault even where an employer admits respondeat superior liability for an accident, such as bringing harmful employment practices to light and encouraging corrective action. Id.
[*P60] The relevant takeaway from Ramon is that evidence of an employer’s negligent employment can be relevant to the question of allocation of fault even after the employer admits liability. We therefore reverse the district court’s order granting Geneva Rock’s motion in limine excluding, as irrelevant, all liability evidence.

CONCLUSION
[*P61] Sheppard introduced sufficient evidence to permit a reasonable jury to conclude that the accident [**29] caused her to incur medical expenses. We reverse the district court’s judgment as a matter of law on the issue of special damages. We also reverse the district court’s grant of Geneva Rock’s renewed motion for judgment as a matter of law, which precluded general damages. We hold that Sheppard introduced sufficient evidence of her medical damages to meet the PIP statute’s threshold requirements. And, because the issue may arise on remand, we also conclude that the district court erred in excluding evidence of Geneva Rock’s employment practices, as we hold that evidence was still relevant after Geneva Rock admitted liability. We reverse and remand for a new trial.

Watson v. Timberlake
Court of Special Appeals of Maryland
February 10, 2021, Argued; July 2, 2021, Filed
No. 38, September Term, 2020

Reporter
2021 Md. App. LEXIS 537 *
SANDRA WATSON v. RODNEY W. TIMBERLAKE, ET AL.
Prior History: [*1] Circuit Court for Prince George’s County. Case No. CAL18-19998.
Disposition: JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

Opinion by Albright, J.
On November 4, 2015, at an intersection in Prince George’s County, the car driven by Appellant Sandra Watson (“Watson” and plaintiff below) hit a trash truck. Appellee Bates Trucking Company, Inc. (“Bates” and defendant below) leased the truck, and at the time of the collision, Bates’s employee, Appellee Rodney W. Timberlake (“Timberlake” and defendant below), was driving the truck.1 Watson filed a negligence action in the Circuit Court for Prince George’s County. Four months before trial, Timberlake and Bates identified an accident reconstructionist as an expert trial witness, but did not supply his actual opinion. Three days before trial, Timberlake and Bates told Watson that the reconstructionist would describe what Watson should have been able to see as she neared the intersection. On the first day of trial, Watson orally asked Judge Judy L. Woodall to exclude the reconstructionist’s opinion as late. Judge Woodall denied Watson’s motion, concluding that the issue was a [*3] discovery dispute that Watson should have raised earlier. Watson’s motion to strike the opinion also failed. Following the jury’s verdict for Timberlake and Bates and the denial of Watson’s new trial motion, Watson noted this appeal. She presents three questions for our review,2 which we consolidate as follows:
I. Whether the trial court abused its discretion in declining to exclude or strike the expert testimony of Timberlake’s and Bates’s accident reconstructionist because their disclosure of his opinion violated the Scheduling Order; and
II. Whether the trial court abused its discretion in denying Watson’s motion for new trial.
Finding no abuse of discretion, we affirm.

BACKGROUND
On November 4, 2015, Watson was driving her grandson to elementary school, traveling northbound on Route 202 toward Dunloring Drive, at approximately 45 miles per hour, five miles per hour below the posted speed limit. At nearly the same time, Timberlake, travelling southbound, was attempting to cross northbound Route 202 to Dunloring Drive. Watson testified at trial that Timberlake never yielded to her and turned into her path of travel. Watson said she tried to swerve but was unable to avoid hitting the truck. Timberlake testified that he stopped to allow a group of cars to pass, crossed Route 202 at a break in the traffic, and turned onto Dunloring Drive. He saw Watson approximately a quarter mile away, far enough, he thought, to allow the turn. As he turned, though, Timberlake said he thought [*5] Watson was driving at an excessive rate of speed and appeared distracted. Timberlake accelerated through the intersection but not before Watson hit the back right end of the truck. Claiming substantial injuries and damages, Watson filed suit on July 2, 2018, and requested a two-day jury trial. The case was assigned case number “CAL18-19998.”
On March 28, 2019, the circuit court issued a Scheduling Order that was ” . . . not [to] be modified except by order of court upon a showing of good cause.” For defense expert witnesses, the court ordered that 30 days before the pretrial conference, “Defense Experts, if any, [be] identified per Maryland Rule 2-402(g) or 2-504.2(g)(9).” All discovery was to completed 60 days prior to trial.3 For “discovery disputes,” the Scheduling Order assigned Judge Tiffany H. Anderson, as this was a case ending in “8.” Judge Anderson would set hearings “. . . where appropriate, no later than thirty (30) days after the motion and response have been filed.” Failures to comply with the Scheduling Order could “result in the imposition of appropriate sanctions.” For disputes over ” . . . any provision of the [Scheduling] Order[,]” the court assigned Civil Coordinating Judge John P. Davey.
On July 25, [*6] 2019, in answer to Watson’s request for production of documents, Timberlake provided the fee schedule and curriculum vitae for David Plant, an accident reconstructionist that Timberlake intended to call as an expert witness at trial.4
On August 6, 2019,5 the Scheduling Order’s first deadline for disclosure of defense experts, Timberlake and Bates again identified Plant. Specifically, Timberlake and Bates said:
David E. Plant, P.E., D.P Plant & Associates, 3800 Argyle Terrace, N.W., Washington, D.C. 20011. Mr. Plant is an accident reconstructionist and a registered professional engineer. Mr. Plant is expected to proffer opinions to a reasonable degree of scientific and engineering probability. Mr. Plant’s opinions will be based on his education, training, and experience, and a review of the case materials, including, but not limited to, police reports, photographs, deposition testimony, the opinions or reports of any other expert, and other records produced in discovery. It is anticipated that Mr. Plant may visit the scene of the accident. He may issue a report, setting forth his professional opinions to a reasonable degree of probability within his [*7] field of expertise and setting forth the bases for each such opinion. Mr. Plant may also testify in rebuttal to Plaintiff’s expert’s opinions and testimonies. A copy of Mr. Plant’s curriculum vitae is attached hereto.
On August 9, 2019, Timberlake served a response to Watson’s interrogatories.6 To Watson’s Interrogatory No. 10, which asked Timberlake to identify any expert he intended to call, and, as to each, “state a) the subject matter on which the expert is expected to testify; b) the qualifications of each such expert; and c) the substance of the facts and opinions to which the expert is expected to testify[,]” Timberlake told Watson that “[s]ubject to the foregoing General Objections, Defendant states that he will identify . . . experts in accordance with the Maryland Rules and the Scheduling Order entered in this matter.”
On August 30, 2019, the parties filed Pretrial Statements. Watson “reserved the right” to call the “[d]efendant’s [sic]” expert witnesses as her own, but did not mention the fact of Plant’s missing opinion.7 Timberlake and Bates again identified Plant and added two other expert witnesses. As to Plant, Timberlake and Bates said
David Plant, P.E., Plant & Associates, [*8] 3800 Argyle Terrace, N.W., Washington, D.C. 20011. Mr. Plant is an accident reconstructionist and a registered professional engineer. Mr. Plant is expected to proffer opinions to a reasonable degree of scientific and engineering probability. Mr. Plant’s opinions will be based upon his education, training, and experience, and a review of the case materials, including, but not limited to, police reports, photographs, deposition testimony, the opinions or reports of any other expert, and other records produced in discovery. It is expected that Mr. Plant will issue a report setting forth his professional opinions to a reasonable degree of probability.
On September 5, 2019, at a telephonic pretrial conference, Judge Anderson determined that liability was “seriously in dispute.” As to the number of expert witnesses, Timberlake and Bates repeated three. The parties mentioned challenges in deposing one of Watson’s experts and a second pretrial conference was scheduled with Judge Davey for October 4, 2019.
On October 4, 2019, at the second telephonic pretrial conference, Judge Davey scheduled a three-day jury trial for December 3-5, 2019. As to expert witnesses, Timberlake and Bates continued [*9] to indicate three. Judge Davey ordered a November 15, 2019 deadline for expert depositions and warned counsel that failure to follow that deadline could mean experts would not be able to testify.8
On November 29, 2019, Timberlake and Bates filed an Amended Pre-Trial Statement again identifying Plant. Specifically, they said
David Plant, P.E., D.P. Plant & Associates, 3800 Argyle Terrace, N.W., Washington, D.C. 20011. Mr. Plant is an accident reconstructionist and a registered professional engineer. Mr. Plant is expected to proffer opinions to a reasonable degree of scientific and engineering probability. Mr. Plant’s opinions will be based upon his education, training, and experience, and a review of the case materials, including, but not limited to, police reports, photographs, deposition testimony, the opinions and reports of any other expert, and other records produced in discovery, as well as his investigation pertaining to the location of the accident. Mr. Plant is expected to testify regarding the details of the accident, the location of Plaintiff’s vehicle at the time the truck turned across the northbound lanes of Route 202/Largo Road, and what Plaintiff should have been able to [*10] view when approaching the intersection of Route 202/Largo Road and Dunloring Drive.
At the start of trial on December 3, 2019, Watson moved orally to preclude Plant from testifying, a motion on which Judge Woodall reserved until December 4, 2019. Having received and reviewed Timberlake’s and Bates’s written opposition overnight, Judge Woodall asked Watson why she had failed to bring the matter to the court’s attention pretrial. Watson indicated she was “taken by surprise here,” that she thought Timberlake and Bates had abandoned Plant as a witness, and that it was not her duty to force Timberlake and Bates ” . . . to fulfill their duties of disclosure.” After showing Judge Woodall a copy of Timberlake’s and Bates’s expert designation,9 Watson pointed out that in it, they had failed to provide Plant’s opinion or the factual basis for it. Calling the failure to provide Plant’s opinion a “discovery violation” also,10 Watson drew Judge Woodall’s attention to the “Taliaferro factors,”11 and outlined how they applied. Timberlake and Bates countered that expert witnesses cannot be excluded on the basis of discovery violations brought up for the first time at trial, citing Food Lion, Inc. v. McNeill, 393 Md. 715, 904 A.2d 464 (2006).
After doubting Watson’s [*11] claim that she was surprised, Judge Woodall denied Watson’s motion. Judge Woodall said:
Counsel, I’m denying your request to keep out the expert. I do believe that it is a discovery issue. One that should have been, you know, dealt with prior to this hearing. I have reviewed the memorandum and cases provided by both sides. I have looked at the discovery rule as well as those two, last two, exhibits you provided for the Court. I have one. I’ll bring it in. And so, you know, again, I’m denying it as to admissibility. You can cross-examine and if, you know, the foundation is not there, we’ll cross that bridge when we get to it.
Thereafter, Timberlake and Bates called Plant, who corroborated their theory that had Watson been paying attention, she would have had “ample” time to see the trash truck and avoid the collision. He related that on November 14, 2019, he had observed an “exemplar” truck that Timberlake drove at the accident site, and, among other things, explained that “between 8 and 8.5 seconds” elapsed between the exemplar’s having stopped and the place of the collision. According to Plant, “between 3.2 and 4.7 seconds” elapsed between the front of the exemplar’s “encroaching into [*12] the left northbound lane of Route 202” and the collision. And “4.9 to 6.4 seconds” elapsed between the exemplar’s “encroaching into the left turn lane . . . to the area of impact.”
Thereafter, through Plant, Timberlake and Bates introduced three photographs Plant caused to be taken on November 30, 2019, each depicting what Watson would have been able to see as she traveled her admitted speed of 45 miles per hour toward the truck. Thus, when the truck stopped, Watson would have been 525 feet away. When the front of the truck was encroaching into the left turn lane, Watson would have been 350 feet away.12 When the truck was encroaching into the left northbound turn lane of Route 202, Watson would have been 241 feet away.
After Plant’s testimony, Watson moved to strike it. To her previous reasons, she added that because Plant formed no opinion until at least November 14, 2019, Timberlake and Bates had no opinion to disclose when they identified Plant, and that she was not obliged to “chase down” Plant’s opinion. Judge Woodall denied Watson’s motion.
At the close of trial, the jury returned a verdict in favor of Timberlake and Bates.
On January 13, 2020, Watson moved for a new trial, claiming [*13] she was denied a fair trial. She argued that Timberlake and Bates violated the Scheduling Order by failing to disclose Plant’s opinions ” . . . until three days before trial.” As a consequence, Watson said, the jury was left with a “unilateral pronouncement” of the accident’s cause. She wanted a new trial with an “even expert playing field.” On February 6, 2020, following the filing of Timberlake’s and Bates’s opposition, Judge Woodall denied Watson’s new trial motion.
This timely appeal followed.

STANDARD OF REVIEW
HN1[ ] We review a circuit court’s decision not to sanction a scheduling order violation for abuse of discretion. Butler v. S&S P’ship, 435 Md. 635, 80 A.3d 298 (2013); Admiral Mortgage v. Cooper, 357 Md. 533, 545, 745 A.2d 1026 (2000)(“[T]he appropriate sanction for a discovery or scheduling order violation is largely discretionary with the trial court.”); Livingstone v. Greater Washington Anesthesiology & Pain Consultants, P.C., 187 Md. App. 346, 388, 978 A.2d 852 (2009)(“A trial court’s discretionary rulings will be disturbed only upon a finding of an abuse of discretion.”). A new trial motion is committed to the sound discretion of the circuit court; its discretionary decision is “rarely, if ever, disturbed on appeal.” Buck v. Cam’s Broadloom Rugs, 328 Md. 51, 59, 612 A.2d 1294 (1992)(cleaned up).

DISCUSSION
Watson argues that Timberlake’s and Bates’s late disclosure of Plant’s opinion amounted to a violation of the court’s Scheduling Order, and that the circuit court’s failure [*14] to exclude it was an abuse of discretion. In concluding that the dispute should have been handled before the trial date, the circuit court failed to address the Taliaferro factors, along with Timberlake’s and Bates’s apparent lack of good faith. These failures, Watson claims, amount to the kind of abuse of discretion that warrants reversal.
To be sure, Timberlake and Bates did not provide Plant’s opinion when they designated him as an expert witness. And, Judge Woodall did not analyze the Taliaferro factors or Timberlake’s and Bates’s good faith (or lack thereof) before declining to exclude Plant’s testimony or grant a new trial. But, given what happened (and did not happen) here, Judge Woodall’s decision was not an abuse of discretion. We explain.
HN2[ ] Scheduling orders are critical13 to the circuit court’s assignment of actions for trial and the efficient management of its case load. Rule 16-302 requires the County Administrative Judge in each county to ” . . . supervise the assignment of actions for trial in a manner that maximizes the efficient use of available judicial personnel, brings pending actions to trial, and disposes of them as expeditiously as feasible.” Rule 16-302(a). To do this, each County Administrative [*15] Judge must develop, and subject to the approval of the Chief Judge of the Court of Appeals, implement a ” . . . system of differentiated case management14 in which actions are classified according to complexity and priority and are assigned to a scheduling category [“track”] based on that classification. . .” Rule 16-302(b). Case management plans must include procedures to ” . . . establish trial and motion calendars and other appropriate systems under which actions ready for trial will be assigned for trial and tried, after proper notice to parties, without necessity of a request for assignment from any party; . . .” and ” . . . establish systems of regular reports that will show the status of all pending actions with respect to their readiness for trial, the disposition of actions, and the availability of judges for trial work[,]” among other features. Rules 16-302(c)(7) and (c)(8), respectively.
HN4[ ] Rule 2-504 requires scheduling orders in every civil case unless the County Administrative Judge orders otherwise in one or more specific kinds of cases. In scheduling orders, some provisions are “required” while others are “permitted.” Thus, scheduling orders must assign civil cases to “tracks” and establish deadlines to designate expert witnesses, notify of the intent to use computer-generated evidence, complete discovery, and file dispositive motions. Rule 2-504(b)(1). Scheduling orders may contain limitations on discovery, provisions pertaining to “the resolution of any disputes existing between the parties relating to discovery[,]” direction to pursue alternative dispute resolution mechanisms, and scheduling and pretrial conference dates. Rule 2-504(b)(2).
HN5[ ] Although Rule 2-504 provides no particular sanctions for the violation of a scheduling order, ” . . . the case law of Maryland makes the imposition of sanctions for the violation of a scheduling order appropriate.” Dorsey v. Nold, 362 Md. 241, 256, 765 A.2d 79 (2001). See also [*17] Rules 1-201(a) and 2-504(c). To this end, we have seen scheduling order violations asserted, and sometimes sanctioned, in a variety of circumstances. These include failure to timely amend a complaint (Berry v. Department of Human Resources, 88 Md. App. 461, 594 A.2d 1258 (1991)); failure to appear at a mediation conference (Tobin v. Marriott Hotels, 111 Md. App. 566, 683 A.2d 784 (1996)); failure to timely provide a pretrial statement to the court and opposing counsel (Betz v. State, 99 Md. App. 60, 635 A.2d 77 (1994)); failure of a party’s insurer’s to appear at a settlement conference (Station Maintenance Solutions, Inc. v. Two Farms, Inc., 209 Md. App. 464, 60 A.3d 72 (2013)); failure to answer interrogatories timely (Faith v. Keefer, 127 Md. App. 706, 736 A.2d 422 (1999)); and failure to timely designate expert witnesses (Lowery v. Smithsburg Emergency Med. Serv., 173 Md. App. 662, 920 A.2d 546 (2007)).
HN6[ ] Where the asserted scheduling order violation involves a discovery failure, the trial court has wide discretion to determine what sanction, if any, is appropriate. Admiral Mortgage, Inc. v. Cooper, supra, at 545. In determining whether the trial court abused its discretion or not, we look to the “Taliaferro factors.” Butler v. S&S P’ship, supra, at 307. These factors are (1) whether the disclosure violation was technical or substantial; (2) the timing of the ultimate disclosure; (3) the reason, if any, for the violation; (4) the degree of prejudice to the parties respectively offering and opposing the evidence; (5) whether any resulting prejudice might be cured by a postponement; (6) and, if so, the overall desirability of a continuance. Taliaferro v. State, 295 Md. at 390-391. Whether to exclude late-disclosed evidence is tantamount to deciding whether to modify a scheduling order’s discovery deadlines to accommodate the late disclosure. Accordingly, in analyzing the Taliaferro factors or the “substantial compliance” and “good faith” necessary to support a scheduling order modification, trial courts often walk the same factual ground. Asmussen v. CSX Transportation, Inc., 247 Md. App. 529, 548-49, 237 A.3d 908 (2020).
HN7[ ] But just as we require substantial compliance (and good faith in complying) with a Scheduling Order’s discovery deadlines, we also expect parties to resolve their known [*18] discovery disputes promptly, either informally or by using the mechanisms available under the Scheduling Order and discovery rules. Food Lion, Inc. v. McNeil, 393 Md. at 733-35 (2006) and Dackman v. Robinson, 464 Md. 189, 233-37, 211 A.3d 307 (2019). See, e.g., Asmussen v. CSX Transportation, Inc., 247 Md. App. 529, 237 A.3d 908 (2020) and Lowery v. Smithburg Emergency Medical Service, 173 Md. App. 662, 920 A.2d 546 (2007).
In Food Lion, Inc. v. McNeill, a request for judicial review of a Worker’s Compensation Commission’s (“WCC”) decision, the late-disclosed opinion of Mr. McNeill’s (“Claimant’s”) identified medical causation expert was not excluded after Food Lion failed to challenge the adequacy of Claimant’s discovery responses during the discovery period or file a timely motion in limine to exclude the opinion. 393 Md. at 735. In answer to interrogatories, Claimant timely identified the expert and the subject matter of his testimony. Roughly one month after the court’s deadline for designation of expert witnesses, Claimant disclosed the witness’s opinion: “[it] is my opinion that [Claimant’s] carpal tunnel and ulnar cubital tunnel problems are directly and causily [sic] related from his repetitive work as a meat cutter at Food Lion.” Id. at 724-25. On the day of trial, and 20 days after the pretrial order’s deadline for the filing of motions in limine, Food Lion moved to exclude the expert’s opinion, a motion the trial court granted. The circuit court, sitting [*19] en banc, reversed, and the Court of Appeals affirmed, explaining that
[d]iscovery violations are cognizable by the trial court during the discovery process and, of course, are sanctionable when they are found. And, as we have seen, there are mechanisms in place for that to happen. It follows thatHN8[ ] discovery issues are best handled during the discovery period; that serves the interest of efficient trial administration. If, therefore, as the appellant maintains, the appellee’s expert’s report was a violation of discovery, and a substantial one, at that, it should have been, and could have been, addressed during the discovery process and, if determined to have been one, sanctioned as such.
Id. at 735.
In Dackman v. Robinson, a lead-paint case, the late-disclosed opinion of a timely-named economic expert was not excluded when the opponent did not take earlier steps to depose the expert or otherwise resolve the discovery dispute. 464 Md. at 233-37. Plaintiffs identified an expert witness before the scheduling order’s deadline, including the subject matter of the expected testimony, but did not provide that expert’s actual opinion until approximately six weeks15 before trial. In declining to sanction plaintiffs, the trial [*20] court explained that defendants had taken no action to resolve the discovery dispute or timely seek a postponement of the trial date, and that the case was not one wherein defendants ” . . . ‘did not know where it was going.'” Dackman, 464 Md. at 235.
In Asmussen v. CSX Transportation, Inc., the opinions of two of plaintiff’s experts were excluded after defendant, who had received plaintiff’s “vague” designation of four placeholder experts, made numerous attempts to secure their actual opinions during the discovery period. Thus, defendant requested more information from plaintiff; filed a motion to compel that failed; deposed one expert only to learn that he was unqualified and that the studies on which he relied did not support plaintiff’s causation theory; and attempted to depose a second on dates plaintiff offered but were actually bad for the expert. When plaintiff asked for a scheduling order modification to permit the late re-designation of an expert he had previously withdrawn, and to secure more time for the deposition, defendant moved to strike both experts. After examining what happened, particularly defendant’s efforts in deposing the unqualifed expert, the court concluded that a “last-minute expert [*21] swap would prejudice CSX[.]” Accordingly, the court denied modification and struck the experts.16 Asmussen, 247 Md. App. at 537-543.
In Lowery v. Smithburg Emergency Medical Service, a case involving claims of defamation and intentional interference with economic relations, the late-disclosed opinion of plaintiff’s identified expert was excluded after defendant made a timely motion in limine seeking same. Lowery, 173 Md. App. at 678. The scheduling order set a deadline for the designation of expert witnesses. Plaintiff timely identified an expert witness and provided the subject matter on which he would testify. After the discovery deadline, and 12 days before the trial date, plaintiff provided defendant a letter outlining the expert’s actual opinion. Defendant filed a timely motion in limine to exclude the expert’s opinion as having been disclosed after the discovery deadline—a motion the court granted four calendar days before trial was to start. Id.
HN9[ ] Ultimately, discovery sanctions are not to operate as a windfall, but instead are intended to relieve the surprise or prejudice a party suffers when his opponent fails to abide by the discovery rules. Morton v. State, 200 Md. App. 529, 543, 28 A.3d 98 (2011)(citing Ross v. State, 78 Md. App. 275, 286, 552 A.2d 1345 (1989)). Cf. Thomas v. State, 397 Md. 557, 571, 919 A.2d 49 (“[t]he most accepted view of discovery sanctions is that in fashioning a sanction, [*22] the court should impose the least severe sanction that is consistent with the purpose of the discovery rules . . . (citing cases)”). For discovery violations (or scheduling order violations based on discovery requirements), therefore, ” . . . ‘the more draconian sanctions, of dismissing a claim or precluding the evidence necessary to support a claim, are normally reserved for persistent and deliberate violations that actually cause some prejudice, either to a party or to the court.'” Butler v. S&S P’ship, supra, at 650 (quoting Admiral Mortgage, Inc. v. Cooper, 357 Md. 533, 545, 745 A.2d 1026 (2000)). A party that delays in addressing an opponent’s known discovery or scheduling order violation limits the court’s ability to address the problem with a lesser sanction. In short, though the party may not intend it, by delaying, the party seeks an impermissible windfall.
Here, the Scheduling Order offered Watson ample chance to bring the fact of Plant’s missing opinion to the court’s attention before trial. After establishing a deadline for the designation of defendants’ expert witnesses, and delineating what information was required in that designation, and setting a discovery deadline,17 the Scheduling Order assigned Judge Anderson for the resolution of discovery disputes, and Judge Davey for [*23] disputes about “any provision” of the Order. The Scheduling Order also required the filing of pretrial statements and attendance at a pretrial conference.
That Plant’s opinion was indeed missing was apparent as early as August 6, 2019 (if not earlier) when Timberlake and Bates named Plant, listed his qualifications, and described the subject matter of his expected testimony (accident reconstruction), but provided no actual opinion. The problem continued on August 30, 2019 when, in their pretrial statement, Timberlake and Bates listed Plant as one of three expert witnesses they would call; to the September 5, 2019 pretrial conference, when Timberlake and Bates confirmed they would call three expert witnesses at trial; to the October 4, 2019 pretrial conference, when Timberlake and Bates again indicated they would call three expert witnesses; and past November 15, 2019, when, despite the deadline for expert witness depositions, Timberlake and Bates still failed to provide Plant’s opinion. Nonetheless, Watson never filed an appropriate discovery motion, or flagged the problem in her pretrial statement, or mentioned it to either pretrial conference Judge.
Against this background, we find [*24] no abuse of discretion in Judge Woodall’s decision both to analyze the situation as a discovery dispute that, under Food Lion, should have been raised earlier by Watson, and to decline a last-minute sanction for a scheduling order violation. On October 4, 2019, without resolving the fact of Plant’s missing opinion, Watson agreed to a three-day jury trial starting 60 days later. The case then came to Judge Woodall on the scheduled trial date. The parties were ready to call the witnesses and introduce the exhibits they mentioned in their pretrial statements. By then, Watson was well past the discovery deadline and the multiple opportunities she had to address Timberlake’s and Bates’s failure to supply Plant’s missing opinion by the August 6 or September 4, 2019 deadlines.
To avoid this result, Watson claims that it was not her burden to assure that Timberlake and Bates complied with their disclosure obligations under the Scheduling Order. Watson adds that until Timberlake and Bates provided Plant’s actual opinion, Plant was merely a “placeholder” expert designated as one of several that Timberlake and Bates might have called. As a consequence, she was not aware that they would call Plant [*25] as a witness, and was prejudiced by not having an opportunity to evaluate Plant’s opinion or designate an accident reconstructionist of her own.
To Watson, Plant may indeed have appeared to be a “placeholder,” that is an expert designated merely to “hold place” until he or she forms an opinion, or until Timberlake and Bates decided which of several “placeholder” experts to call at trial. But the Scheduling Order here did not call for the designation of “placeholder” experts. Instead, by incorporating Rule 2-402(g), the Scheduling Order required Timberlake and Bates to state ” . . . the substance of the findings and the opinions to which . . . [Plant] is expected to testify and a summary of the grounds for each opinion[.]” If Watson was dissatisfied with Timberlake’s and Bates’s disclosure, and could not resolve the issue with good faith efforts, she was required to seek relief with reasonable promptness, Rule 2-432(d).
Had Watson sought relief, the court may have been able to address the prejudice Timberlake and Bates caused Watson18 with a sanction less severe than exclusion.19 Watson received Timberlake’s and Bates’s deficient designation on August 6, 2019. Had Watson moved to compel Plant’s opinion, Judge Anderson [*26] may have compelled Timberlake and Bates to supply it. Or, because Plant expected to review deposition testimony in forming his opinion, and the deposition of Watson’s eyewitness, Kimberly Brooks, had not yet occurred,20 Judge Anderson may have hastened Ms. Brooks’ deposition, and extended the designation and discovery deadlines.21 Or, Judge Anderson could have required that Plant appear for deposition at Bates’s and Timberlake’s expense, Rule 2-402(g)(3). And, Judge Anderson could have awarded Watson her attorney’s fees in having to chase Timberlake and Bates for Plant’s opinion, Rule 2-433(d). By delaying her request for relief to the first day of trial — when these options were no longer feasible –Watson took them off the table, and in so doing, sought what amounted to a windfall.
Watson further argues that when she declined Watson’s request to exclude Plant, Judge Woodall abused her discretion by failing to consider the Taliaferro factors, particularly the prejudice Watson suffered by the jury’s hearing Plant’s unchallenged expert opinion. HN10[ ] But a detailed analysis of the Taliaferro factors is not required, particularly where the court declines to consider sanctions. Muffoletto v. Towers, 244 Md. App. 510, 542, 223 A.3d 1169 (2020). Having heard Watson’s argument about the Taliaferro [*27] factors, Judge Woodall did not abuse her discretion in declining to take up the discovery dispute, or sanction Timberlake and Bates.
For the same reasons, we also affirm Judge Woodall’s denial of Watson’s new trial motion. Judge Woodall acted well within her discretion in allowing Plant’s testimony. Accordingly, we see no basis for a new trial.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.