March 31, 2020 BY Robert Quinn
Expert Witness: To Exclude, or Not to Exclude, That is the Question
A significant factor to consider when evaluating a case, in particular for purposes of settlement, is whether the opposing party intends to utilize expert witnesses. The inclusion or exclusion of opposing party's expert witness in some instances may make or break a case. The lack of an expert witness such as an economist may prohibit a plaintiff from proving future lost income which would significantly diminish the value of the case. Or failing to disclose a orthopedist as a testifying expert may preclude an injured plaintiff from establishing causation. Alternatively, the use of such expert witnesses by the plaintiff may significantly strengthen their case and convince you or your client that settlement is more advantageous than proceeding to trial. The use of an expert witness becomes even more important when the other side intends to use one. There are countless instances where juries put undue weight on the testimony of an expert merely because the other side failed to present similar testimony to rebut the expert’s opinion. This makes the disclosure of an expert witness critical for evaluating a case for settlement.
For many years in Georgia, an expert witness may be excluded under certain circumstances including the failure to disclose the expert witness by deadlines established in the court’s case management order. The failure to disclose an expert witness pursuant to a court’s case management order in some instances have led to sanctions against the offending party including excluding that expert from testifying at trial. The exclusion of the expert could certainly be devastating to your case and severely affect the settlement value. However, a recent decision from the Georgia Supreme Court has changed the hardline rule regarding the exclusion of experts that were not timely disclosed pursuant to a court scheduling order. Instead, the Georgia Supreme Court has now identified a list of factors that the court should consider when determining whether to exclude the late identified expert witness.
In Lee v. Smith, S18G1549, the Supreme Court was asked two questions, (1) whether it is proper for a trial court to exclude an expert witness solely because the witness was identified after the deadline established in the case management order, and (2) if it is improper to exclude such a witness, what factor should a trial court consider when exercising its discretion in determining whether to exclude said witness. The case in question involved a collegiate athlete who was injured in a car accident. Liability was not at issue and the only thing to be determined at trial were the damages sustained by the plaintiff. Plaintiff did not disclose an expert witness in response to discovery requests. The court had entered a case management order requiring all parties to identify all witnesses by May 12, 2017. Plaintiff subsequently supplemented his responses to interrogatories identifying his sports agent as a damages witness. However, he did not disclose his sports agent as an expert witness. In June of the same year, defense counsel identified an expert witness to be called as a rebuttal witness regarding plaintiff's newly submitted claim for future lost income.
During the July pretrial hearing, plaintiff argued that the defendant's rebuttal expert should be excluded because they were not timely identified pursuant to the case management order. Defendant argued that the need for the expert witness did not become apparent until after the disclosure of plaintiff's sports agent as a damages witness. The court excluded the expert witness and explained that while he was sympathetic to the position of the defendant, the parties agreed to a scheduling order that required the disclosure of all expert witnesses by May and the most recent disclosure was untimely.
As a result of exclusion of defendant's expert witness, plaintiff was able to submit unrebutted testimony regarding his claim for lost wages. The jury eventually returned a verdict for $2 million dollars.
Defendant appealed this case to the Georgia Court of Appeals which initially affirmed the decision of the trial court. Defendant then appealed this case to the Georgia Supreme Court. The Georgia Supreme Court initially agreed that the trial court has broad discretion in setting scheduling deadlines and also imposing sanctions upon parties for failing to comply with those deadlines. This had been the rule in Georgia for many years and similar sanctions excluding expert witnesses have been upheld. However, the Georgia Supreme Court noted that the trial court's discretion in fashioning a sanction for the party's failure to comply with the scheduling order is not unlimited. The court reasoned that "no harsher sanctions should be imposed than are necessary to vindicate the court's authority." The Georgia Supreme Court further stated that a trial court must exercise some discretion by evaluating the specific circumstances surrounding the party's non-compliance with an order to property determine what, if any, sanction is necessary to provide fairness to the parties and to vindicate the court's authority. The Georgia Supreme Court determined that because the sole reason the trial court decided to exclude the expert was he was untimely disclosed, the trial court had abused its discretion in sanctioning the defendant.
However this did not end the court's analysis of the matter. The Georgia Supreme Court provided further guidance as to what a trial court should consider when determining whether or not the untimely disclosure of an expert witness warrants the sanction of excluding the witness. The court ultimately decided that four factors should be considered when determining whether to exclude a late identified expert witness. First, the explanation for the failure to disclose the witness, two, the importance of the testimony, three, the prejudice to the opposing party if the witness is allowed to testify and, four, whether a less harsh remedy than the exclusion of the witness will be sufficient to ameliorate the prejudice and vindicate the court's authority. Because these factors were not considered by the trial court when imposing the sanction of excluding the witness, the Supreme Court remanded the case for further consideration by the trial court.
What is important to understand from this new framework for determining a proper sanction for untimely disclosed expert witnesses is that the failure of a party now to meet the deadline in disclosing an expert witness does not immediately close the door for that witness' inclusion at trial. The parties need to be weary of the fact that the mere failure of a party to disclose an expert witness before the deadline will not immediately preclude them from using an expert witness at trial. The parties must be cognizant of these factors going forward and understand the potential for disclosure of a previously unidentified expert witness when evaluating their case either for trial or for settlement. Despite the fact that this new four factor test will allow some parties to include an expert witness that was previously not identified by the court's scheduling order, we recommend taking all necessary steps to properly disclose any expert witnesses as soon as possible to ensure your ability to utilize those witnesses at trial.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley