Sometimes expert witnesses become necessary in personal injury cases, including lawsuits arising out of Atlanta car accidents. An accident reconstruction expert may provide important testimony about how the accident happened. A medical expert may provide useful testimony about the kinds of medical treatment and care that might be needed in the future. It may be important to locate credible experts as needed early on to prove your case. In a recent Georgia Supreme Court case, the lower court excluded an expert defense witness’s testimony. It reasoned the expert hadn’t been adequately identified in the scheduling order. The Court of Appeals affirmed.
The Supreme Court agreed to hear and determine two issues. First, the Court sought to answer whether the lower court could exclude an expert from testifying only because he was identified after the court’s deadline. Second, the Court looked at what factors the lower court would need to consider if using its discretion on whether to exclude an expert’s testimony where the expert has been identified after the deadline.
The plaintiff had been a high jumper. He was in a car crash that caused him a fractured hip. The defendant acknowledged he was to blame for the crash. The plaintiff sued the defendant for a wide range of damages, but didn’t include lost wages. In interrogatories, the defendant asked the plaintiff to identify expert witnesses who would testify at trial and asking for an itemization of special damages being claimed due to the accident including future lost earnings. The plaintiff’s responses to interrogatories indicated he hadn’t decided on expert witnesses who would testify, and stated he would supplement later according to the requirements of the Georgia Civil Practice Act.
The plaintiff was able to return to competition at the Olympics, but went through surgery to extract a bone chip from his hip joint. Months after the surgery, he supplemented his response to the interrogatory asking him to identify expert witnesses on the issue of the impact his injuries would have on his future in various aspects of his athletic career and personal life, including treating doctors and his agent. The plaintiff intended to call a qualified economist at trial to testify for a limited purpose.
The lower court entered a consent scheduling order that mandated identification of all witnesses. On the last date to identify witnesses, the plaintiff supplemented his discovery responses. These included supplementation on special and general damages. His job changed from college high jumper to professional high jumper. Because of the injuries he suffered during the crash and the reasonable and necessary medical treatment that arose, he lost earnings in an amount to be more fully shown at trial. Certain responses to interrogatories weren’t supplemented.
At a pretrial hearing, the defendant argued that the plaintiff’s rebuttal expert should be excluded from testifying at trial because he hadn’t been identified by the deadline. The lower court excluded the expert on the grounds that the lawyers had been in conference with him and the lawyers had set the schedule and dates.
At trial, the plaintiff’s expert gave unrebutted testimony to buttress the plaintiff’s claim for lost wages. In the closing argument, the plaintiff’s attorney emphasized the defendant’s failure to rebut the testimony. The jury returned a $2 million general verdict for the defendant.
The plaintiff appealed. The Court of Appeals affirmed the lower court’s decision. The Supreme Court reasoned that in civil lawsuits, the lower court has discretion over timing and sequence of discovery. However, the discretion isn’t unrestricted.
The Court decided that the lower court’s decision to exclude the rebuttal expert from testifying at trial harmed the plaintiff. The expert gave notable, uncontradicted testimony about the windfall the plaintiff could’ve made had he not been injured in the car accident. It explained certain factors need to be considered in connection with harshly sanctioning a plaintiff by excluding a late-identified witness from providing testimony. To decide whether there was an abuse of discretion, the court would need to consider: why the witness wasn’t disclosed, how important the testimony was, prejudice to the opposing party, whether a continuance would repair any prejudice, and whether less harsh remedies were available.
The case was sent down to the Court of Appeals with the direction it vacate the lower court’s ruling and send the case to the lower court with a directive to reconsider its ruling based on the factors described.
If you were injured in a car accident in Atlanta or somewhere else in Georgia, you should discuss your circumstances with seasoned personal injury attorney Stephen M. Ozcomert. He has more than 20 years of experience. Call us at (404) 370-1000 or contact us via our website.