Resurgens, P.C. v. Elliott

• Decision Date: 30 May 2017
• Docket Number: S16G1214
• Citation: 800 S.E.2d 580
• Parties: RESURGENS, P.C. et al. v. ELLIOTT.
• Court: Georgia Supreme Court

800 S.E.2d 580

RESURGENS, P.C. et al.

v.ELLIOTT.

S16G1214

Supreme Court of Georgia.

Decided: May 30, 2017

Reconsideration Denied June 30, 2017

Tracy Morgan Baker, Paul E. Weathington, David Christopher Hanson, WEATHINGTON SMITH, PC, 191 Peachtree Street NE, Suite 3900, Atlanta, Georgia 30303, Mark W. Wortham, HALL BOOTH SMITH, P.C., 1037 Front Avenue, Columbus, Georgia 31902, Nathan Alexander Gaffney, HALL BOOTH SMITH, P.C., 191 Peachtree St. NE, Suite 2900, Atlanta, Georgia 30303, for Appellant.

Michael Andrew Clark, ANDY CLARK LAW, LLC, 1100 Peachtree Street NE, Suite 200, Atlanta, Georgia 30309, Eric James Hertz, ERIC J. HERTZ PC, 8205 Dunwoody Place, Building 19, Atlanta, Georgia 30350, for Appellee.

HUNSTEIN, Justice.

In 2011, Appellee Sean Elliott filed a medical malpractice lawsuit against Appellants Resurgens and Dr. Tapan Daftari in the State Court of Fulton County. Elliott alleged that Dr. Daftari failed to timely diagnose and treat an abscess

in his thoracic spinal cord, which resulted in his paralysis. The parties engaged in pretrial discovery, and, during trial four years later, Elliott attempted to call Savannah Sullivan, a nurse who was not specifically identified as a potential witness in either Elliott's written discovery responses or in the parties' pre-trial order ("PTO"). The trial court subsequently excluded Sullivan as a witness. After the jury returned a defense verdict, Elliott appealed to the Court of Appeals, arguing that the trial court's exclusion of Sullivan was error. The Court of Appeals agreed, reversing the jury's judgment and remanding for a new trial. See Elliott v. Resurgens, P.C. , 336 Ga.App. 217, 782 S.E.2d 867 (2016).

We granted certiorari to decide whether the Court of Appeals erred in reversing the trial court's decision to exclude Sullivan as a sanction for the plaintiff's failure to identify her in pre-trial discovery proceedings. For the reasons which follow, we conclude that the Court of Appeals' decision was in error, and we therefore reverse the judgment below.

1. Factual and Procedural Background

(a) Pretrial Proceedings

As recounted by the Court of Appeals, Elliott began seeing Dr. Daftari in 2004 to receive medical treatment for neck and back pain. In December 2009, Dr. Daftari diagnosed Elliott with degenerative disc disease

and subsequently performed posterior cervical spine surgery to repair the issue. Approximately two weeks after the surgery, Elliott experienced many complications leading to another hospitalization and eventual back surgery on December 21, 2009. Despite this, Elliott was unable to recover neurologic function, and he became paralyzed from the waist down. See Elliott , 336 Ga.App. at 217-218, 782 S.E.2d 867.

Elliot filed his complaint in 2011, alleging medical malpractice. In support of his claims, Elliott attached expert affidavits to his amended complaint stating that, at 9:00 a.m. prior to Elliott's December 21 surgery, Dr. Daftari was aware that Elliott was unable to move his legs and that, despite knowing of the patient's change in medical status, he did not act quickly enough to respond to the same.¹

After answering the complaint, Dr. Daftari served Elliott with interrogatories requesting that he identify defendants' alleged acts of negligence and list potential witnesses. In response to the request for information regarding acts of negligence, Elliott pointed to the "testimony and expertise of the experts who have reviewed my medical records" and referred defendants to the expert affidavits attached to the complaint. Concerning the witness interrogatories, Elliott's responses were as follows:

21. Witnesses to alleged acts/omissions

As to each and every allegation of negligence against the Defendants, whether made in your Complaint, or in the subsequently filed expert affidavits, or in your response to the preceding Interrogatory, please identify by name and address all persons known to you who have or claim to have knowledge, information or an opinion in any way relevant to or regarding that act or omission, and specify the knowledge, etc., each such witness possesses.

RESPONSE: I object to this interrogatory in that it seeks legal conclusions, mental impressions, protected work product and information protected by the attorney client privilege, and it seeks to impose obligations on me greater than required by the Georgia Civil Practice Act. Subject to this objection and without waiving the same, I direct defendants to review my complaint along with attached affidavits, as well as the medical records I provided to defendants' counsel and the records defendants kept through out my care. As discovery is ongoing, I will supplement my response should more information become available.

* * *

31. Witnesses

Please state the name, present address and telephone number of all persons not identified elsewhere in the answers to these Interrogatories who are known or believed by you to have any knowledge or information which is relevant, directly or indirectly, to the claims asserted in your Complaint.

RESPONSE: I object to this interrogatory in that it seeks legal conclusions, mental impressions, protected work product and information protected by the attorney client privilege, and it seeks to impose obligations on me greater than required by the Georgia Civil Practice Act. As discovery is ongoing, I will supplement my response should more information become available.

(Emphasis added.)

During the discovery process, Elliott supplemented his discovery responses, but did not disclose Sullivan as a potential witness or person with knowledge. Neither Resurgens nor Dr. Daftari filed a motion to compel pursuant to OCGA § 9-11-37 or sent Elliott a letter pursuant to Uniform Superior Court Rule 6.4 requesting clarification of his discovery responses.

On June 6, 2014, the parties submitted a PTO to the trial court wherein Elliot identified his "may call" witnesses as: "Plaintiff's treating medical providers," "any person named in the medical records," and "any healthcare professional whose name appears in Plaintiff's records identified [herein]"; he further reserved "the right to call other witnesses for the purposes of impeachment or rebuttal." Sullivan's name, though noted twice in the voluminous medical records produced during discovery, was not listed as a potential witness in the PTO nor was she identified in his March 2015 notice of witnesses subpoenaed for trial. Leading up to trial, the parties also had informal discussions regarding potential trial witnesses via e-mail; Sullivan was not identified in any of these communications.

(b) Trial

On the second day of trial, during Elliott's case-in-chief, counsel called Dr. Daftari to the stand for the purposes of cross-examination; he asked one question—whether Dr. Daftari was at Elliott's bedside at 9:00 a.m. on December 21, 2009. Dr. Daftari stated that he was not.² Thereafter, Elliott called Sullivan as his next witness. Defense counsel objected, arguing that Sullivan was intentionally omitted from the PTO and that Elliott likewise never identified her during discovery despite their interrogatory requests for witnesses with knowledge. Elliott argued that this witness was generally identified in the "catch all" categories of the PTO, as she was a "treating medical provider," a "person named in the medical records," and was an impeachment witness. After hearing arguments from the parties, the trial court excluded Sullivan as a witness "because she was not identified during the extensive discovery that has been allowed in this case."

The next day, Elliott produced to the trial court the two pages in the medical records wherein Sullivan's name appeared. Neither page showed that Sullivan provided any medical care to the patient or that she was at Elliott's bedside with Dr. Daftari at 9:00 a.m. on December 21, 2009. Elliott renewed his request to call Sullivan as a witness and allow her to testify for the purposes of impeachment and because her name appeared in the medical records. Defense counsel objected again, arguing that, despite knowing Sullivan was a material witness prior to trial, Elliott failed to disclose her in either supplemental discovery or in the PTO; he further averred that, though Sullivan's name was listed in two places in the medical records, nothing in those pages put them on notice that she had knowledge relevant to the claims and was, therefore, a potential witness to be investigated.

The court affirmed its prior ruling, finding as follows:

I have, in considering this motion for reconsideration, considered very carefully [Plaintiff's counsel], the argument that you made and your argument about manifest injustice, which goes to us all having a level playing field, which is what the ultimate goal of this court is, is to make sure we do have a level playing field.

I have also heard [defense counsel's] argument about the burden his client would face having to deal with trial by ambush, I think is the phrase he used. What I find is that at some point prior to these trial proceedings starting this week, the plaintiff did make a decision to call or to attempt to call ... Savannah Sullivan. And this witness was not named either in the interrogatories—the interrogatory responses, the Plaintiff's supplementation of the interrogatory responses and that there has been no identification of her in the Pretrial Order . I am going to stand by my earlier ruling. So as to allow for a trial to proceed without surprise, without ambush and as I say, I stand by my ruling to exclude the proposed witness. So, I have carefully considered, as I say, the arguments of both counsel, the citations to the case law that [defense counsel] presented, plus additional precedent.

I believe this is in my discretion and, again, my goal here is so that there is not an unfair burden of surprise where there has been absolutely no disclosure of this witness at any time, even in the hours leading up to the days leading up to trial . So, that's my

...