THIRD DIVISION DOYLE, P. J., REESE, J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
September 16, 2022
In the Court of Appeals of Georgia A22A1023, A22A1024. LEE v. SMITH (two cases).
REESE, Judge.
In this motor vehicle collision case, after the jury entered a verdict in favor of
plaintiff David A. Smith, II, defendant Donggue Lee appealed, and the Supreme
Court of Georgia held that the trial court abused its discretion by excluding a defense
witness based solely on Lee’s late identification of the witness.1 The case was
remanded to the trial court to reconsider its ruling in light of specific factors other
than untimeliness,2 and on remand the trial court again excluded the defense witness.
In Case No. A22A1023, Lee contends that the trial court (1) again excluded the
witness based solely on his late disclosure and (2) misapplied each and every factor
1 Lee v. Smith, 307 Ga. 815 (838 SE2d 870) (2020). 2 Id. at 825 (4). set forth in the Supreme Court’s decision. In Case No. A22A1024, Lee challenges the
trial court’s supersedeas bond. For the reasons set forth infra, we affirm in Case No.
A22A1023 and dismiss as moot Case No. A22A1024.
Following a jury’s verdict and the trial court’s subsequent entry of judgment,
we must construe the evidence in favor of upholding the verdict.3 So viewed, the
record shows that Smith “was a world-ranked collegiate high jumper who suffered
several injuries, including a fractured left hip, in a September 2012 car collision.”4
Smith graduated from college in 2014, but he continued to train as a high jumper
while he pursued a master’s degree. Smith filed suit against Lee in September 2014.
In its opinion, the Supreme Court noted that:
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
3 Dunwoody Obstetrics & Gynecology v. Franklin, 363 Ga. App. 90, 91 (870 SE2d 592) (2022). 4 Lee, 307 Ga. at 815-816 (1).
2 requesting an itemization of all special damages he was claiming as a result of the accident, including future lost earnings.5
On July 1, 2015, Smith, who was still a student at the time, responded in part
to Lee’s interrogatories 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.6
With regard to an interrogatory on special damages, Smith listed his medical and
rental car expenses.7 In response to an interrogatory on lost earnings, Smith indicated
5 Id. at 816 (1) (punctuation omitted). 6 Lee, 307 Ga. at 816 (1) (punctuation omitted). 7 Id. at 816-817 (1).
3 that he was “not claiming lost earnings.”8 However, in response to Lee’s request for
production of documents, Smith stated:
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, . . . for the past five years. . . .
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.9
In response to other requests for production of documents, Smith indicated that he
was not claiming lost current or past wages.10
“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
8 Id. at 817 (1). 9 Id. at 817-818 (1) (punctuation omitted). 10 Id. at 818 (1).
4 joint that, he alleges, was caused by the 2012 collision.”11 Shortly before his surgery,
Smith finished his master’s degree. On March 30, 2017, after both the surgery and his
graduation, Smith supplemented his response to Interrogatory No. 16 as follows:
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. 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.12
The same day, Smith sent to Lee a settlement demand for $3,000,000, in which he
noted that his damages were extensive and, were it not for the injuries caused by the
collision, he could have continued to compete as an Olympic athlete and world
champion.
On April 5, 2017, the trial court entered its fourth consent scheduling order.
The order required both parties to identify all witnesses by May 12, 2017, and
complete all discovery depositions by June 15 and all trial depositions by July 28, and
11 Lee, 307 Ga. at 818 (1). 12 Id. at 818-819 (1) (punctuation and footnote omitted).
5 set the case for trial on August 7, 2017. On April 14, new defense counsel entered an
appearance. A few weeks later, Smith’s new sports agent, Lamont Dagen, sent
Smith’s counsel an email detailing his opinion as to the impact of the collision on
Smith’s athletic career and earning potential.
On May 12, the last day for identifying witnesses, Smith again supplemented
Interrogatory No. 16 to identify Dagen. He also supplemented his response to the
interrogatory regarding lost earnings:
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.13
13 Lee, 307 Ga. at 819 (1) (punctuation omitted).
6 Also on May 12, Lee’s counsel inquired when it would be possible for him to take
Smith’s agent’s deposition and propounded additional discovery regarding Smith’s
sports agents, past earnings, and anticipated future earnings.
Lee deposed Dagen on June 20, and, one week later, identified an expert he
planned to call as a rebuttal witness, sports agent John Nubani. Lee scheduled an
evidentiary deposition of Nubani for July 28.
On July 19, at the pretrial hearing, Smith argued that Nubani should be
excluded from testifying because he was not identified by May 12 and because Smith
would be prejudiced in that he would not have time for Dagen to review Nubani’s
testimony prior to trial. The trial court excluded Lee’s witness.
At trial, Lee conceded liability for the collision. Smith’s doctor testified that
Smith’s hip fracture did not heal correctly, necessitating the 2017 surgery, and he
opined that Smith would not be able to return to high jumping at the same level that
he had reached prior to the fracture and subsequent surgery. Smith testified to the
injury’s impact on his performance and how the collision prevented him from
becoming a professional athlete. Dagen testified as to Smith’s lost wages and lost
earning potential and opined that, had Smith not had to undergo surgery, he could
7 have enjoyed a ten-year career as a professional high jumper and earned $1,000,000
over the course of his career.
During argument, Lee asserted that Smith’s performance was not impaired by
the collision and that Smith’s claim of damages was speculative because he had no
contract offers. However, Smith’s counsel emphasized Lee’s failure to rebut Dagen’s
testimony, as well as his failure to rebut the medical evidence. Ultimately, the jury
returned a $2,000,000 general verdict for Smith.
Lee appealed, and a divided Court of Appeals affirmed the trial court’s decision
to exclude Lee’s rebuttal witness.14 The Supreme Court reversed, holding that the late
identification of a witness alone does not automatically justify the exclusion of that
witness.15 Rather, a trial court must exercise its discretion and evaluate the particular
circumstances of the party’s noncompliance with its scheduling order to determine
what, if any, action is necessary to vindicate its authority and provide fairness to the
parties.16 Nevertheless, the Supreme Court held that even though the trial court
14 Lee v. Smith, 346 Ga. App. 694 (1) (816 SE2d 784) (2018), rev’d in part, 307 Ga. 815 (838 SE2d 870) (2020), and vacated, 356 Ga. App. 330 (847 SE2d 1) (2020). 15 See Lee, 307 Ga. at 821-822 (2). 16 Id. at 820-823 (2), (3).
8 excluded Lee’s expert on an improper basis, “we cannot say on the current record that
the trial court could not have come to the same conclusion if it had properly exercised
its discretion” by considering the relevant factors.17 The Supreme Court remanded the
case to this Court,18 and we remanded the case to the trial court.19
On remand, following briefing and a hearing, the trial court again excluded
Lee’s rebuttal witness. Thereafter, the trial court granted Smith’s motion for
supersedeas bond and ordered Lee to post a cash bond in the amount of $3,000,000
into the registry of the court. Lee’s insurer, Travelers Casualty and Surety Company
of America, ultimately filed a surety bond. These appeals follow.
“A trial court has broad discretion to control discovery, including the
imposition of sanctions, and this Court will not reverse a trial court’s decision on
discovery matters absent a clear abuse of discretion.”20 “An abuse of discretion occurs
where a ruling is unsupported by any evidence of record or where that ruling
17 Id. at 825 (4). 18 Id. 19 Lee, 356 Ga. App. at 331. 20 Resurgens, P.C. v. Elliott, 301 Ga. 589, 597 (2) (b) (800 SE2d 580) (2017) (citations and punctuation omitted).
9 misstates or misapplies the relevant law.”21 The deferential abuse-of-discretion
standard is used in discovery disputes because, unlike the appellate courts, “the trial
court directly supervised the ebb and flow of the discovery and trial process in the
case and had the opportunity to observe and assess the conduct, demeanor, and
credibility of the parties and their counsel throughout the proceedings.”22 This Court
also reviews a trial court’s order requiring a supersedeas bond for abuse of
discretion.23 With these general principles in mind, we turn now to Lee’s specific
claims of error.
Case No. A22A1023
In two related arguments, Lee contends that the trial court abused its discretion
by again excluding his late-disclosed witness.
“Once a trial court has properly exercised its discretion to enter an order setting
a scheduling deadline, compliance with that order is of paramount importance, as a
party’s failure to comply with it could subject that party to sanctions, including the
21 Lewis v. Lewis, 316 Ga. App. 67, 68 (728 SE2d 741) (2012) (citation and punctuation omitted). 22 Resurgens, 301 Ga. at 598 (2) (b) (citation and punctuation omitted). 23 Gaslowitz v. Stabilis Fund I, 331 Ga. App. 152, 157 (3) (770 SE2d 245) (2015).
10 harsh sanction of excluding a proffered witness from testifying at trial.”24 However,
the late identification of a witness, standing alone, does not automatically justify the
exclusion of that witness.25 Rather, the Supreme Court held that when determining
whether to exclude a witness who a party did not timely identify in compliance with
the trial court’s scheduling order, the trial court 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.”26 When “the trial court defaults
to the most extreme sanction available based solely upon a party’s failure to meet a
deadline in a scheduling order without considering any other factors, that court will
have abused its discretion.”27
24 Lee, 307 Ga. at 821 (2). 25 Id. 26 Id. at 824 (3); see id. at 823 (3) (noting that previously “our own case law and Georgia statutes” had not directly addressed all of the specific factors that a trial court should consider). 27 Id. at 821-822 (2) (emphasis in original).
11 1. Lee contends the trial court “paid lip service” to the factors articulated by the
Supreme Court but that the sole reason for the court’s decision to exclude the defense
witness was Lee’s late disclosure. We are not persuaded. In fact, the trial court
considered not only Lee’s failure to timely disclose the witness but each of the four
factors set forth by the Supreme Court.
On remand, the trial court made specific findings as to each and every factor.
Notably, the trial court considered not only Lee’s late disclosure of the witness, Lee’s
explanation of which the court found “wanting[,]” but also Lee’s failure to alert the
court to the problem prior to the hearing on July 19, 2017, the importance of the
testimony, Lee’s failure to make a proffer as to Nubani’s proposed testimony
regarding Smith’s earnings, the prejudice to Smith, and whether other remedies were
sufficient under the circumstances. Given the court’s specific and detailed findings,
Lee’s claim that the trial court merely paid lip service to the four factors set forth by
the Supreme Court is not compelling.28
28 Compare Lamb v. Javed, 303 Ga. App. 278, 280-281 (1) (692 SE2d 861) (2010) (rejecting an argument that the trial court erred by failing to apply forum non conveniens factors on remand when the court made written findings considering and weighing each of the relevant factors), with Cortes v. Ga. Power Co., 361 Ga. App. 103, 105 (863 SE2d 376) (2021) (vacating the trial court’s dismissal order when the court dismissed the plaintiff’s case for missing a deadline “without apparent consideration of any other circumstances”).
12 2. Lee also contends that the trial court misapplied all of the factors identified
by the Supreme Court. Although a different trial court might have fashioned a
different remedy, we cannot say that the trial court abused its discretion in excluding
Lee’s late-identified witness given the circumstances present in this case.29
(a) With regard to the first factor, “the explanation for the failure to disclose
the witness,”30 Lee argues that the trial court abused its discretion in finding that his
explanation for the failure to timely disclose Nubani weighed in favor of exclusion.
Underlying Lee’s argument is his contention that Smith provided false or
deliberately misleading discovery responses,31 and, as a result, he first learned of
Smith’s claim for lost wages, including lost future earnings, in May 2017, on the last
day to identify witnesses for trial. As an initial matter, we note that even under Lee’s
29 See Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261) (2014) (“A proper application of the abuse-of-discretion review recognizes the range of possible conclusions the trial judge may reach, and that there will often be occasions in which we will affirm the evidentiary ruling of a trial court even though we would have gone the other way had it been our call.”) (punctuation and footnote omitted). 30 Lee, 307 Ga. at 824 (3). 31 See Resurgens, 301 Ga. at 595 (2) (a) (“When a party receives a substantive answer to a discovery request, they are entitled to believe that answer, and they are not required to file a motion to compel or seek clarification of that substantive response in order to obtain sanctions should they later learn that the answer provided was false or intentionally misleading.”).
13 version of events, in which he first learned of Smith’s lost earnings claim in May,
more than one month passed before he identified a rebuttal expert and more than two
months passed before he alerted the court. Moreover, the trial court found that Lee’s
position was “disingenous[,]”32 and this finding is supported by some evidence. Smith
disclosed in July 2015 that he “may present evidence at the time of trial on this issue
of diminished future wages or earning capacity[.]”33 Even if this disclosure was
insufficient, in March 2017, prior to the setting of the court’s scheduling order, Smith
disclosed that he intended to call “various damages witnesses” regarding the impact
of his injuries on his “athletic career,” including his agent and, if necessary, a
qualified economist.34 Lee nevertheless argues he was entitled to rely on Smith’s
earlier discovery responses that Smith was not claiming past or current lost wages and
that he could not have named a rebuttal expert earlier because he had no way of
knowing the substance of Dagen’s testimony until Dagen’s deposition on June 20,
32 See id. at 598 (2) (b) (explaining that during discovery matters the trial court has “the opportunity to observe and assess the conduct, demeanor, and credibility of the parties and their counsel throughout the proceedings”) (citation and punctuation omitted). 33 Lee, 307 Ga. at 817 (1). 34 Id. at 818-819 (1).
14 2017. Even without knowing the exact testimony Dagen would provide, given
Smith’s disclosures in July 2015 and March 2017, some evidence supports the trial
court’s finding that Lee knew before the last day to identify witnesses in May 2017
that Smith intended to present evidence of diminished earning capacity and the
impact of the collision on his athletic career, such that Lee would need a witness in
order to rebut this evidence.
Lee also argues that the trial court abused its discretion by focusing on his
counsel’s failure to alert the court to the problem immediately. As Lee notes, “[p]rior
to filing a motion seeking resolution of a discovery dispute, counsel for the moving
party shall confer with counsel for the opposing party . . . in a good faith effort to
resolve the matters involved.”35 However, as early as June 7, Smith’s counsel made
clear that he would not agree to any discovery outside the parameters of the
scheduling order and that the parties needed to consult with the trial court. Smith also
immediately objected to Lee’s June 28 identification of his proposed rebuttal witness
as untimely. Accordingly, the trial court did not abuse its discretion by faulting Lee
for not alerting the court to the problem prior to the July 19 hearing.
35 Uniform Superior Court Rule 6.4 (b).
15 Given the evidence that Lee was aware of Smith’s claim for diminished future
wages or earning capacity prior to May 2017 yet failed to act promptly to identify a
witness or alert the court, the trial court did not abuse its discretion in weighing this
factor against Lee.36
(b) With regard to the second factor, “the importance of the testimony,”37 Lee
argues that the rebuttal witness’s testimony was essential to his defense.
As an initial matter, at the hearing on July 19, 2017, Lee argued that Nubani
would testify that high jumpers do not have long careers and do not make as much
money as Dagen opined. However, at no point, not even during the hearing on
remand, did Lee provide a proffer to the trial court of Nubani’s expected testimony
as to the amount of Smith’s future lost earnings. Given Lee’s failure to make a proffer
36 See J.P. Carey Enterprises v. Cuentas, Inc., 361 Ga. App. 383, 397 (3) (864 SE2d 588) (2021) (finding no abuse of discretion in striking a party’s expert witness affidavit when there was evidence that the party was aware of the defense months earlier); Knight v. Miami-Dade County, 856 F3d 795, 812 (II) (B) (11th Cir. 2017) (finding no abuse of discretion in excluding witness when plaintiffs had at least five months to gather their experts and did not show a substantial justification for their tardiness). Lee argues that Smith improperly relies on federal case law in support of his position, but the federal court in Knight applied the same four-factor test adopted by our Supreme Court, id. at 811 (II) (B), and our Supreme Court cited numerous federal cases, including Knight, in its decision. See Lee, 307 Ga. at 823 (3) (listing cases). 37 Lee, 307 Ga. at 824 (3).
16 as to Nubani’s proposed testimony, the trial court concluded that it “was not able to
form a reasonable opinion about the importance of the excluded testimony.”
Furthermore, because Lee promptly identified a rebuttal expert after Dagen’s June 20
deposition, the trial court found that Lee simply did not wish to incur the expense of
hiring his own expert until then. Finally, the court noted that Lee’s primary defense
at trial was causation, including whether Smith had pre-existing injuries that impacted
his career and whether he was able to fully recover after the accident. Considering all
these factors, the trial court concluded that Nubani’s testimony was not so important
that its late disclosure warranted a less harsh remedy. In light of Lee’s failure to
provide a proffer, we cannot disturb the trial court’s ruling on this factor.38
(c) As to the third factor, “the prejudice to the opposing party if the witness is
allowed to testify,”39 Lee argues that there was no prejudice to Smith because Lee was
38 See Landry v. Walsh, 342 Ga. App. 283, 285 (1) (801 SE2d 553) (2017) (“To establish reversible error, a party seeking review of a trial court’s ruling excluding testimony must show how the testimony would have benefitted her case. To make this showing, a party must proffer the excluded testimony to the trial court. Absent such a proffer, we have no basis in the record to disturb the trial court’s ruling.”) (citations omitted). 39 Lee, 307 Ga. at 824 (3).
17 able to schedule a deposition of Nubani within the timeframe set forth in the
scheduling order.
As set forth above, the scheduling order called for the parties to complete all
trial depositions by Friday, July 28, 2017, and set the case for trial on Monday,
August 7. The trial court determined that Lee’s late disclosure put Smith in the
position of not having sufficient time to effectively examine Nubani because Lee
scheduled Nubani’s trial deposition in Pittsburgh, Pennsylvania, on Friday, July 28,
just five business days prior to trial, and Lee also scheduled a deposition of one of
Smith’s treating doctors in Birmingham, Alabama, on Tuesday, July 25. Given the
travel and the time it would have taken to obtain a transcript of Nubani’s deposition
testimony, some evidence supports the trial court’s finding that Smith would have
been prejudiced by allowing Nubani to testify.40
(d) Lastly, with regard to the fourth factor, “whether a less harsh remedy than
the exclusion of the witness would be sufficient to ameliorate the prejudice and
40 See Geiserman v. MacDonald, 893 F2d 787, 791 (II) (5th Cir. 1990) (affirming trial court’s exclusion of a witness who was disclosed late when the delay would have disrupted the opponent’s preparation). As with Knight, 856 F3d 795, the Supreme Court cited Geiserman in its decision. See Lee, 307 Ga. at 823 (3) (listing cases).
18 vindicate the trial court’s authority[,]”41 Lee argues that the trial court could have and
should have granted a continuance.
The trial court found that the only less harsh remedies available to it by the
time of the July 19 hearing were to (1) subject the parties to an onerous deposition
schedule in the weeks immediately prior to trial, or (2) grant a continuance. However,
given that the purported need for a continuance had been created by Lee’s failure to
comply with the scheduling order and his subsequent failure to timely ask the court
for relief when a less harsh remedy would not have caused prejudice to either party,
the court concluded that the harm to Smith in imposing a less harsh remedy
outweighed the harm to Lee in excluding his witness. The trial court did not abuse its
discretion in reaching this conclusion.42
Given the circumstances present in this case, we cannot conclude that the trial
court abused its discretion in again excluding Lee’s late-disclosed witness.
41 Lee, 307 Ga. at 824 (3). 42 See Cuentas, 361 Ga. App. at 398 (3) (finding no abuse of discretion in striking an expert witness affidavit when the trial court expressed skepticism of the party’s proffered reason for delay and did not want to countenance suspected legal gamesmanship).
19 Case No. A22A1024
3. Finally, Lee contends that the trial court abused its discretion in requiring
him to pay a cash supersedeas bond. As set forth above, Lee did not actually post a
cash bond. For this reason and because the main appeal has been decided, Lee’s
appeal of the supersedeas bond is dismissed as moot.43
Judgment affirmed in Case No. A22A1023. Appeal dismissed as moot in Case
No. A22A1024. Doyle, P. J., and Senior Appellate Judge Herbert E. Phipps concur.
43 See Roberts v. Roberts, 226 Ga. 203, 206 (3) (173 SE2d 675) (1970) (“The issue of the propriety of the trial court’s requiring a supersedeas bond on the appeal is moot. The record does not reveal that the bond was in fact paid.”); Muhammad v. Power Lending, 311 Ga. App. 347, 349-350 (5) (715 SE2d 734) (2011) (dismissing as moot an appeal from a supersedeas bond when the main appeal had been decided).