Trial Court Should Have Allowed Unidentified Witness, Appellate Court Holds

Surprise! A medical malpractice plaintiff won a significant victory this month when the Court of Appeals held that a trial court should have allowed his surprise witness to testify at trial, reversing a ruling that struck the witness as a discovery sanction.  Elliott v. Resurgens, P.C., Case No. A15A2275 (March 4, 2016).  While the ruling represented a win for the plaintiff in this particular case, it may constitute a loss for the principal of orderly administration of cases overall.  Going forward, Plaintiffs and defendants alike may invoke Elliott to avoid the consequences of their failure to timely identify trial witnesses, whether that failure was by deliberate design or mere oversight.

Trial is the last step in a lengthy, expensive, and (especially for the parties involved) exhausting process.  The objective of pre-trial proceedings is to discover the evidence, facts, and witnesses upon which an opponent may rely at trial, so that each party can accurately assess his/her/its trial exposure and risk, and make an educated decision as to whether to settle or whether to “roll the dice” at trial.  That objective is undermined when a litigant fails to disclose his/her/its evidence and witnesses to an opponent during discovery.

The Elliott case illustrates this principle.  The case arose from an alleged act of medical malpractice that occurred in 2009, led to the filing of a lawsuit in 2011, and then a trial in 2015—all told, a six year process that doubtlessly cost the parties tremendously and taxed the judicial system’s resources as well.   Despite “extensive discovery [being] allowed in th[e] case” during the four years preceding trial, the plaintiff—during trial—sought to offer testimony from a critical witness that it had never previously identified.   Id.  The trial court excluded the witness as a discovery sanction, “noting that its goal was to prevent ‘an unfair burden of surprise [when] there [had] been absolutely no disclosure [of the witness] at any time.’”   Id.  The Court of Appeals reversed the trial court decision.

The Court of Appeals held that, rather than excluding the witness, the trial court should have imposed a less drastic sanction—such as by postponing the trial (to allow the defense to depose the witness) or declaring a mistrial.  In reaching this conclusion, the appellate court invoked the principle that, in Georgia, the right to a “fair and impartial jury trial” is a “sacrosanct and cherished right,” which it suggested the trial court undermined by excluding critical evidence for a party’s bad behavior during discovery.  As the appellate court stated:  “[I]n Georgia, ‘exclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission.  In fact, this is true even when there is no excuse for a party’s failure to faithfully engage in discovery in compliance with [an] extended discovery deadline.’”  Id.

It’s hard to argue with this principle.  On the other hand, however, it’s also true that only a fraction of cases ever make it to trial.  The vast majority settle or are disposed of by pre-trial motion.   Fair resolution of these cases depends on parties’ compliance with their discovery obligations, which trial courts are in the best position to and also must be allowed the discretion to police.

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