Lee v. Smith

• Decision Date: 10 February 2020
• Docket Number: S18G1549
• Citation: 307 Ga. 815,838 S.E.2d 870
• Court: Georgia Supreme Court
• Parties: LEE v. SMITH.

307 Ga. 815

838 S.E.2d 870

LEE

v.SMITH.

S18G1549

Supreme Court of Georgia.

Decided: February 10, 2020

Swift, Currie, McGhee & Hiers, Bradley S. Wolff, David M. Atkinson, for appellant.

Willis McKenzie, Matthew C. Alford, Nathan D. Cronic, Sr., for appellee.

Melton, Chief Justice.

In this personal injury case, the trial court excluded the testimony of an expert defense witness, reasoning that the expert had "not [been] properly identified within the parameters of the scheduling order." The Court of Appeals affirmed, and we granted the defendant's petition for a writ of certiorari to answer the following two questions: (1) May a trial court exclude an expert witness solely because the witness was identified after the deadline set in a scheduling, discovery, and/or case management order? and (2) If not, what factors should a trial court consider when exercising its discretion whether to exclude an expert witness who was identified after the deadline set in a scheduling, discovery, and/or case management order?

The parties concede, and this Court agrees, that the answer to the first question is "no." With respect to the second question, we conclude that, when a trial court exercises its discretion in a civil case to determine whether to exclude a late-identified witness, it 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. Based on these answers, we reverse the judgment of the Court of Appeals in part and remand this case with direction that the Court of Appeals vacate the trial court's ruling and remand the case to the trial court for reconsideration.

1. The facts of this case are not in dispute. The record shows that the plaintiff, David A. Smith II, was a world-ranked collegiate high jumper who suffered several injuries, including a fractured left hip, in a September 2012 car collision. The defendant, Donggue Lee, acknowledged fault for the collision. Smith filed suit against Lee in September 2014; at that time Smith requested in his complaint damages for "pain and suffering," "medical expenses," and "further relief as [the trial court] may deem just and proper," but he made no specific claim for future lost wages.

After answering the complaint, Lee served written discovery on Smith, asking him to identify any expert witnesses who would testify at trial and requesting an itemization of all special damages he was claiming as a result of the accident, including future lost earnings. On July 1, 2015, Smith responded in relevant part¹ to Lee's interrogatories on these matters as follows:

[Interrogatory Number] 16.

Identify each expert expected to testify at trial and state the subject matter about which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and give a summary of the grounds for each opinion.

RESPONSE: [Smith] has not made a decision regarding expert witnesses who may testify at trial, and, as such, this interrogatory will require supplementation at a later date in which supplementation will be pursuant to the requirements of the Georgia Civil Practice Act.

...

[Interrogatory Number] 21.

Itemize all special damages you claim as a result of the accident, including, but not limited to, property damage, medical expenses, drug expenses, and lost wages. A general reference to other documents will not serve as a response to this interrogatory; you may attach a chart summarizing these damages as an exhibit to your responses.

RESPONSE: [Smith] has not yet received all of the medical bills associated with the injuries he received in this collision. To date, [Smith] has received medical bills totaling $3,241.39 (Bay Area Credit Service $1,229.39; Avis Rent a Car System, LLC $901.80; West Georgia Health System Radiology $108.00; West Georgia Medical Center $1,005.20). [Smith] also received treatment of his pelvic fracture from Dr. James Andrews and rehabilitation and physical therapy at Auburn University. This interrogatory will require supplementation at a later date in which supplementation will be pursuant to the requirements of the Georgia Civil Practice Act.

...

[Interrogatory Number] 35.

If you are claiming lost earnings, please state: (a) each and every basis, fact and circumstance upon which you rely for each such claim; (b) if there has been any change in your occupation(s), employer(s), duties(s) [sic] or earnings since the accident, please describe each such change; and (c) if your alleged injuries have prevented you from working at any time since the accident referenced in the complaint, state: (1) the date(s) that you were unable to work because of your injuries and what earnings, if any, you lost by reason of each such date of not working; and (2) whether you have received any payment (Workmen's Compensation, sick leave pay, disability insurance, income protection insurance or other) on account of any such loss of time from work or loss of earnings and the amount and source of such payment.

RESPONSE: [Smith] is not claiming lost earnings.

In Smith's responses to Lee's request for production of documents, Smith stated the following:

[Request for Production Number] 1.

If you are making a claim for loss of income or wages or loss or diminishment of future wages or earning capacity, provide a copy of your W-2, W-4 and 1099 forms and federal and state income tax returns, including supplemental tax forms for any business income, for the past five years. (If you do not have them, then produce an executed tax form 4506).

RESPONSE: [Smith] is not claiming past or current lost wages. However, [Smith] may present evidence at the time of trial on this issue of diminished future wages or earning capacity, and, as such, this response may require supplementation at a later date prior to trial in accordance with the Civil Practice Act.

...

[Request for Production Number] 4.

[Produce] [a]ll documents, if any, relating to your rate of pay, income, etc., and relating to lost earnings or other special damages which you claim in this lawsuit.

RESPONSE: [Smith] is not claiming lost current or past wages.

...

[Request for Production Number] 14.

If you are claiming a loss of income or a reduction in your ability in the future to labor, please (a) produce all books, documents or other tangible things which prove, support or constitute evidence of any fact or circumstances on which you base your claim of lost earnings; (b) please produce your Federal and State Income Tax returns, W-2, and 1099 forms for three years before the date of incident referenced in the Complaint and for each year since the incident; (c) please produce all check stubs, receipts and record of deposits, drafts and other documents reflecting earnings or salary for the period of one year prior to this accident.

RESPONSE: [Smith] is not claiming lost current or past wages. This response may require supplementation at a later date, which said supplementation will be in accordance with the Civil Practice Act.

Though Smith was able to return to competition and compete in the 2016 Olympics, he underwent surgery in January 2017 to remove a bone chip from his hip joint that, he alleges, was caused by the 2012 collision. Two months after his surgery, Smith supplemented his response to Interrogatory Number 16 regarding the identification of expert witnesses, stating:

[Smith] further intends to call various damages witnesses at trial regarding the impact that [Smith's] injuries will have upon [his] future in various aspects of his personal life and athletic career, including treating physicians and [Smith's] agent, Leo Finkley.^{[2 ]} To the extent necessary, and in the event the parties cannot stipulate to an agreed upon rate for reduction of future lost earnings to present cash value, [Smith] intends to call to trial to testify for that limited purpose a qualified economist.

Less than a week later, on April 5, 2017, the trial court entered a consent scheduling order that required identification of all witnesses by May 12, 2017, and set August 7 as the trial date. On the last day for identifying witnesses, Smith again supplemented his discovery responses. Relevant here is his supplementation to Interrogatory 16, which stated:

[Smith] further intends to call various damages witnesses at trial regarding the impact that [Smith's] injuries will have upon [his] future in various aspects of his personal life and athletic career, including ... [Smith's] agent, Lamont Dagan.

And, Smith supplemented his response to Interrogatory Number 35, which stated:

In addition to past, current and future lost earnings, [Smith] has further suffered special and/or general damages in the form of, inter alia, diminished earning capacity, diminished ability to work, labor or earn wages. Since the date of the accident giving rise to this lawsuit, [Smith's] occupation changed upon graduation from Auburn University in May 2016 from collegiate high jumper to professional high jumper. As a result of the injuries suffered during the collision and the reasonable and necessary medical treatment resulting therefrom (including, inter alia, surgery in January 2017), [Smith] has lost earnings (including, inter alia, contract, sponsorship, incentive, appearance and various other forms of earnings associated with his profession) in an amount to be more fully shown at trial.

Lee did not supplement his answers to Interrogatory 21 or the Requests for Production. Lee deposed Smith's newly identified sports agent, Lamont Dagen, on June 20. A week later, Lee sent an e-mail to Smith identifying an expert he planned to call as a rebuttal witness regarding Smith's newly asserted claim for future lost earnings.

At a July pretrial hearing, Smith argued that Lee's rebuttal expert...