307 Ga. 815 FINAL COPY
S18G1549. LEE v. SMITH.
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
2 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.
...
1Although Smith also asserted various objections in some of his specific discovery responses, those objections are not relevant to our analysis and are not included in the quoted portions of his responses in this opinion. 3 [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
4 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.
5 [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
6 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 Dagen.
2 The record does not indicate that Lee ever deposed Finkley. 7 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 should be excluded from testifying at trial because he was not
8 named by the May 12 deadline set in the scheduling order. In
response, Lee argued that he had not learned of Lamont Dagen or
the subject of the sports agent’s testimony until Smith
supplemented his discovery responses and identified the witness on
the last day allowed by the scheduling order. Lee also provided
information about his expert’s anticipated rebuttal testimony.
Nevertheless, the trial court excluded Lee’s expert from testifying,
explaining:
[E]ach time we had a scheduling order put in place I had a conference with the lawyers and I let them set the schedule. I said to both sides, when can you be ready, when can you have this done, when can you have that done, I said – and this last time, I said, look, guys, this is the last go-round. You’ve got to tell me what you can accomplish, when you can get this done, so this – that scheduling order that I entered on April the 5th that put it on this trial calendar coming up on August the 7th, I let those lawyers pick those dates, and I told them when they were picking them there wasn’t going to be any further extensions unless you had legal grounds for a continuance, and I simply don’t hear any. I’m sympathetic to your position [as Lee’s attorney], Mr. Atkinson; you didn’t create the problem, but neither did I. And so I am going to exclude the witnesses that were not properly identified within the parameters of the scheduling order, and we are going to go forward with the trial on August the 7th.
9 (Emphasis supplied.)
At trial, Smith’s expert provided extensive, unrebutted
testimony to support Smith’s claim for lost wages. During closing
argument, Smith’s counsel emphasized Lee’s failure to rebut this
testimony. 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 expert from testifying at
trial. Lee v. Smith, 346 Ga. App. 694 (1) (816 SE2d 784) (2018); id.
at 700 (Ray, J., dissenting). We granted Lee’s petition for a writ of
certiorari to determine the propriety of the Court of Appeals’ ruling
on this issue.3
2. In civil cases, a trial court has “broad discretion . . . to control
the sequence and timing of discovery, see OCGA § 9-11-26 (d), and
to establish pretrial procedure, see OCGA § 9-11-16 (a) (5).” (Citation
and punctuation omitted.) Rivera v. Washington, 298 Ga. 770, 777-
778 (784 SE2d 775) (2016). This broad discretion extends to the
3 We do not address the Court of Appeals’ other holdings. 10 setting of pretrial scheduling deadlines and other matters of case
management. See, e.g., Martin v. Fulton County Bd. of Registration
& Elections, 307 Ga. 193, 211 (2) (835 SE2d 245) (2019) (“[T]rial
courts have broad discretion over . . . scheduling and discovery-
related issues.”). 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 harsh sanction of excluding a proffered witness from
testifying at trial. See Ambler v. Archer, 230 Ga. 281, 289 (1) (196
SE2d 858) (1973) (“It, undoubtedly, must lie within the power of the
court to impose appropriate sanctions to make effective its pre-trial
orders.”). See also, e.g., Johnson v. Mammoth Recreations, 975 F2d
604, 610 (3) (9th Cir. 1992) (“A scheduling order is not a frivolous
piece of paper, idly entered, which can be cavalierly disregarded by
counsel without peril.”) (citation and punctuation omitted).
However, a trial court’s discretion in fashioning an appropriate
sanction for a party’s failure to comply with a proper scheduling,
11 discovery, or case management order is not unlimited. As this Court
has previously explained, “no harsher sanctions should be imposed
than are necessary to vindicate the court’s authority.” Ambler,
supra, 230 Ga. at 289 (1). Indeed, a trial court can abuse its
discretion by imposing a sanction that is too harsh under the given
circumstances of a case. Id. See also Carder v. Racine Enterprises,
261 Ga. 142 (2) (401 SE2d 688) (1991) (where defendants failed to
participate in production of pretrial order, trial court abused its
discretion by precluding defense from presenting evidence at trial to
contest liability, as such a sanction was too harsh in light of other
appropriate sanctions that were available). This is so because a trial
court must exercise some discretion by evaluating the specific
circumstances surrounding a party’s noncompliance with an order
to properly determine what, if any, sanction is necessary to provide
fairness to the parties and to vindicate the court’s authority. If the
late identification of a witness were the only factor to be considered
regarding the exclusion of a witness’ testimony, a trial court would
have no need to exercise any discretion at all in making a decision
12 to exclude a late-identified witness, because the late identification
alone would automatically justify the exclusion of that witness. In
this regard, in instances where 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. See Ambler,
supra, 230 Ga. at 289 (1) (trial court abused its discretion by refusing
to permit counsel for caveators to call any witness other than the
caveators themselves, as sanction was too harsh even after counsel’s
failure to attend second pretrial hearing and failure to formulate
pretrial order in cooperation with opposing counsel). See also The
Kroger Co. v. Walters, 319 Ga. App. 52, 60 (2) (b) (735 SE2d 99)
(2012) (“In a civil suit it is an abuse of discretion to exclude a
relevant witness solely on the ground that the witness was not
identified during discovery or in a timely manner.”).4
Here, the parties disagree about whether the trial court
4 Judge Ray’s dissent in the Court of Appeals’ opinion relied on Walters, which the majority did not address. 13 excluded Lee’s rebuttal expert based solely on the late identification
of the witness. But the trial court stated that, even though Lee
“didn’t create the problem,” the court was going to exclude the
rebuttal expert because he was “not properly identified within the
parameters of the scheduling order.” Under such circumstances, we
conclude that the trial court excluded the witness based solely on
Lee’s late identification of him. Consequently, the trial court abused
its discretion. See Carder, supra, 261 Ga. at 144 (2); Ambler, supra,
230 Ga. at 289 (1). See also The Kroger Co., supra, 319 Ga. App. at
60 (2) (b).
We also conclude that the trial court’s decision to exclude Lee’s
rebuttal expert from testifying at trial was harmful to Lee. See, e.g.,
Carder, supra, 261 Ga. at 142 (1) (“Harm as well as error must be
shown to authorize a reversal by this court.”) (citation and
punctuation omitted). Indeed, Smith’s expert, Dagen, provided
extensive and unrebutted testimony concerning the millions of
dollars that Smith could have made had it not been for the injuries
that he sustained as a result of the car accident. Moreover, Smith’s
14 attorney was able to capitalize on this unrebutted testimony in his
closing argument. Based on the foregoing, we cannot say that the
exclusion of Smith’s rebuttal expert was harmless. See, e.g., Carder,
supra, 261 Ga. at 144 (2) (sanction of forbidding defendants from
presenting evidence to contest liability was erroneous and harmful);
The Kroger Co., supra, 319 Ga. App. at 60 (2) (b) (even where
negligence had been established, exclusion of late-identified witness
was harmful, as witness could have helped to rebut negative
presumption raised by alleged spoliation of evidence).
Accordingly, we reverse the portion of the decision of the Court
of Appeals upholding the trial court’s decision to exclude Lee’s
rebuttal expert. Moreover, to the extent that other cases from the
Court of Appeals can be read to support the proposition that a trial
court does not abuse its discretion by excluding a witness solely
because the witness was identified after the deadline set in a
scheduling, discovery, and/or case management order, those cases
are overruled. See, e.g., Moore v. Cottrell, Inc., 334 Ga. App. 791 (2)
(780 SE2d 442) (2015); Kohler v. Van Peteghem, 330 Ga. App. 230
15 (3) (767 SE2d 775) (2014); Vaughan v. WellStar Health System, 304
Ga. App. 596, 601-602 (3) (696 SE2d 506) (2010); Collins v. Dickman,
295 Ga. App. 601, 603-604 (1) (672 SE2d 433) (2008).
3. However, this does not end our inquiry, as we must now turn
to the second question of what other factors the trial court should
have considered prior to excluding the late-identified witness in this
case. To answer this question, we look to rulings from other
jurisdictions for guidance, as our own case law and Georgia statutes
do not directly address all of the specific factors that a trial court
should consider. See, e.g., Slade v. Rudman Resourcess 237 Ga. 848,
850 (230 SE2d 284) (1976) (surveying authority from other
jurisdictions to find guidance on issue of first impression in Georgia).
In this regard, the Eleventh Circuit and other courts have
indicated that certain factors other than untimeliness should be
considered when a trial court is determining whether the harsh
sanction of excluding a late-identified witness from testifying is
appropriate. See, e.g., Knight v. Miami-Dade County, 856 F3d 795,
811 (II) (B) (11th Cir. 2017) (“In evaluating whether the exclusion of
16 a late witness was an abuse of discretion, [the] court should consider
[1] the explanation for the failure to disclose the witness, [2] the
importance of the testimony, and [3] the prejudice to the opposing
party if the witness [is] allowed to testify.”) (citation and
punctuation omitted); Citizens Bank v. Ford Motor Co., 16 F3d 965,
966 (II) (8th Cir. 1994) (“The factors courts consider when
determining whether to exclude witnesses not made known in
compliance with a pretrial order are: (1) the reason the party fails to
name the witness; (2) the importance of the testimony; (3) the
amount of time the opposing party needs to properly prepare for the
testimony; and (4) whether a continuance would in some way be
useful.”) (citations and punctuation omitted); Ammons v. Bonilla,
886 SW2d 239, 243 (Tenn. Ct. App. 1994) (same); Geiserman v.
MacDonald, 893 F2d 787, 791 (II) (5th Cir. 1990) (discretion to
exclude late-identified witness is reviewed on appeal based on “(1)
the explanation for the failure to identify the witness; (2) the
importance of the testimony; (3) potential prejudice in allowing the
testimony; and (4) the availability of a continuance to cure such
17 prejudice”); Jumper v. Hawkins, 558 SE2d 911, 916 (S.C. Ct. App.
2001) (“[I]n the face of a pre-trial order mandating the disclosure of
a witness by a certain date, a trial judge is required to consider and
evaluate the following factors before imposing the sanction of
exclusion of a witness: (1) the type of witness involved; (2) the
content of the evidence emanating from the proffered witness; (3)
the nature of the failure or neglect or refusal to furnish the witness’
name; (4) the degree of surprise to the other party, including the
prior knowledge of the name of the witness; and (5) the prejudice to
the opposing party.”). A common thread among these cases is that a
party’s explanation for the late identification, the importance of the
witness’ testimony, the prejudice to the opposing party, and the
availability of less harsh remedies (such as granting a continuance)
are the types of matters that a trial court should consider before
deciding to exclude a late-identified witness.
Based on this persuasive authority, and based on our own
precedent instructing that a trial court impose “no harsher sanctions
. . . than are necessary to vindicate the court’s authority” (Ambler,
18 supra, 230 Ga. at 289 (1)), we hold that, when determining whether
to exclude a witness who was not timely identified in compliance
with a pretrial scheduling, discovery, or case management order, a
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.5
We conclude that the consideration of these factors will allow a
trial court to properly balance the circumstances surrounding a
party’s failure to comply with a pretrial scheduling, discovery, or
case management order with the trial court’s need to fashion an
appropriate remedy when a party fails to comply with such an order.
In some cases, a continuance or out-of-time discovery may be more
5 These factors should be considered in all cases where a witness is disclosed in an untimely manner in violation of a court-imposed deadline, but additional factors might also be appropriate to consider in unusual or extraordinary cases. 19 appropriate than imposing a sanction; or even “[c]ontempt may at
times be proper[.]” (Citation and punctuation omitted.) Ambler,
supra, 230 Ga. at 289 (1). See also Martin, supra, 307 Ga. 211 (2)
(“[T]rial courts have broad discretion over . . . scheduling and
discovery-related issues.”). Trial courts must remain mindful that
only “in an extreme case [should] the plaintiff’s action . . . be
dismissed or the defendant [be] precluded from introducing evidence
relating to his defense, [because] these remedies are too drastic if
less harsh sanctions are appropriate.” (Citation and punctuation
omitted.) Ambler, supra, 230 Ga. at 289 (1). See also Geiserman,
supra, 893 F2d at 791 (II) (upholding exclusion of expert witness
after evaluating the feasibility of other remedies and considering
plaintiff’s actions in missing two court-imposed deadlines).
4. While the trial court here erred by excluding Lee’s rebuttal
expert solely based on his late identification (and the Court of
Appeals erred in affirming that ruling on the same ground), “[t]he
question that remains is what relief should be ordered to remedy”
this error. Waller v. Georgia, 467 U. S. 39, 49 (II) (C) (104 SC 2210,
20 81 LE2d 31) (1984). In this regard, even though the trial court
excluded the 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 factors outlined above. The parties should be given an
opportunity to present evidence and argue how the factors we have
now identified apply to this case, and the trial court must be given
an opportunity to consider this issue again in light of our decision.
If, after considering such factors, the trial court concludes again that
Lee’s expert witness should have been excluded, a new trial would
be unnecessary, but that decision would still be subject to review on
appeal for an abuse of discretion. See Waller, supra, 467 U. S. at 50
(II) (C) (reversing trial court decision to close motion to suppress
hearing, remanding case for trial court to apply proper legal test,
and concluding that “[a] new trial need be held only if” the defendant
obtained the relief sought); Atkins v. State, 254 Ga. 641, 642 (331
SE2d 597) (1985) (case remanded for new suppression hearing
rather than new trial where trial court needed to determine whether
21 all elements had been met to show that minor had given valid
consent for search of mother’s house). If, however, the trial court
concludes that the expert should not have been excluded under the
circumstances, a new trial should be ordered. See Waller, supra, 467
U. S. at 50 (II) (C).
Accordingly, we remand this case to the Court of Appeals with
the direction that it vacate the trial court’s ruling and remand this
case to the trial court with the direction that the court reconsider its
ruling in light of the factors set forth above.
Judgment reversed in part, and case remanded with direction. All the Justices concur, except Blackwell, J., who concurs in the judgment and in Divisions 1, 2 and 3.
DECIDED FEBRUARY 10, 2020. Certiorari to the Court of Appeals of Georgia — 346 Ga. App. 694. Swift, Currie, McGhee & Hiers, Bradley S. Wolff, David M.
22 Atkinson, for appellant. Willis McKenzie, Matthew C. Alford, Nathan D. Cronic, Sr., for appellee.