The Georgia Supreme Court (“the Court”) recently remanded the decision of a trial court to exclude a defense expert who was not properly disclosed during discovery. In Lee v. Smith, ---S.E.2d --- (2020), the Plaintiff, Smith, was injured in an automobile accident in 2012. Smith filed suit in September 2014 against Lee, who acknowledged liability for the accident. Smith made several claims, but did not identify a future lost earnings claim until April 2017. On April 5, 2017, the trial court entered a scheduling order requiring identification of all witnesses by May 12, 2017. Smith identified his damages witness on May 12, 2017. Lee deposed Smith’s witness in June and a week later, Lee identified a rebuttal expert regarding Smith’s future lost earnings claim.
At the July pretrial hearing, Smith argued Lee’s witness should be excluded for failure to disclose during the discovery period. Lee argued that he should be able to identify a rebuttal witness because Smith did not identify his witness until the last day allowed under the scheduling order. The trial court noted that though Lee “didn’t create the problem” he nonetheless failed to comply with the scheduling order. The Court of Appeals upheld the trial court’s ruling. Lee was granted certiorari to the Georgia Supreme Court.
The Court noted that if the late identification of the witness was the sole reason for exclusion the trial court abused its discretion. In so finding, the Court noted “no harsher sanctions should be imposed than are necessary to vindicate the court’s authority.” A trial court cannot automatically exclude a witness solely due to late identification, but must use its discretion in examining the circumstances surrounding the late identification. The Court also found that the exclusion of the expert was harmful to Lee. The Court noted Smith was able to provide extensive unrebutted testimony regarding millions of dollars in lost earnings due to Smith’s injuries.
The Court then set guidelines for a trial court to follow to determine whether to exclude a witness from testifying. In so doing, the Court looked at the Eleventh Circuit and other courts. The Court determined that when deciding whether to exclude a late identified witness a trial court should consider:
(1) the explanation for the failure to disclose the witness, (2) the importance of the testimony, (3) the prejudice to the opposing party if the witness is allowed to testify, and (4) whether a less harsh remedy than the exclusion of the witness would be sufficient to ameliorate the prejudice and vindicate the trial court’s authority.
The Court emphasized that only in the most extreme cases “[should] the plaintiff’s action ... be dismissed or the defendant [be] precluded from introducing evidence relating to his defense, [because] these remedies are too drastic if less harsh sanctions are appropriate.” Though the Court found an abuse of discretion, it also found that after consideration of the above factors the trial court may still find Lee’s expert should be excluded. The Court remanded the matter back to the trial court.
This decision provides a template for future litigation with regard to experts and the timing of disclosure in Georgia courts.