The failure to disclose an expert witness or to provide an expert report within the time limit set by a scheduling order is a recurring issue. Some courts enforce deadlines rigidly. Others are more flexible.
Overruling several lower court precedents, the Georgia Supreme Court made clear that the late disclosure of an expert should not automatically result in exclusion of the expert’s testimony. Rather, a trial judge should make a ruling that is fair to both parties, given the circumstances of the case.
Smith’s Discovery Disclosures
David Smith II was a highly ranked collegiate high jumper before he fractured his hip in a car accident. Smith sued the other driver, Donggue Lee, for negligence. Lee admitted fault.
Smith’s complaint requested damages for medical expenses and pain and suffering. The complaint did not specifically ask for an award of lost future earnings, but it did include a boilerplate request for such further relief as is just and proper.
An interrogatory asked Smith to identify expert witnesses. He answered that he had not made a decision about experts and would supplement his answers pursuant to the rules of civil procedure.
Another interrogatory asked Smith to itemize all of his special damages, including lost wages. Smith provided the medical expenses he had available, stated that he had not received final billings for all of his treatment, and promised to supplement his answers pursuant to the rules of civil procedure. The answer made no reference to past or future wage loss.
The last relevant interrogatory asked for information about lost earnings. Smith answered that he was not claiming lost earnings.
In response to a request for production of documents concerning loss of wages or future earning capacity, however, Smith answered that he was not claiming a loss of past or present earnings but might present evidence of lost earning capacity. He stated that he would supplement his response when that evidence was available.
Four years after the accident, Smith was able to compete in the Olympics. A year later, he had surgery to remove a bone chip from his hip joint that he regarded as accident related.
Two months after that surgery, Smith supplemented his discovery responses to state that he intended to call damages witnesses, including a treating physician and his agent. He stated that in the absence of a stipulation, he would also call an economist to testify about reduction to present value of future lost earnings.
Scheduling Order Issues
The trial court then entered a scheduling order setting a deadline for disclosing experts. Before the deadline passed, Smith supplemented his discovery responses again to indicate that he had been losing earnings, and would continue to do so, in the form of endorsement fees, corporate sponsorship fees, appearance fees, and similar compensation regarding his career as a professional high jumper. He also identified a newly retained agent who would testify as an expert witness.
The defense responded by identifying a rebuttal expert. Smith moved to exclude the expert because he was not identified within the time required by the scheduling order. The trial court granted the motion.
The court expressed sympathy for defense counsel’s claim that prior to the last day for disclosing experts, Lee had no notice that Smith intended to call his new agent as an expert or to make a claim for lost endorsement fees and similar future earnings. However, the court was apparently frustrated that the case had been on the docket for so long and did not want to make any rulings that would further delay the trial.
At trial, Smith emphasized in closing arguments that the defense presented no expert testimony to counter the agent’s calculation of lost earnings. The jury returned a general verdict of $2 million in Smith’s favor.
Lee appealed. The Georgia Court of Appeals affirmed the judgment. The Georgia Supreme Court agreed to review the trial court’s exclusion of testimony by Lee’s rebuttal expert.
Automatic Exclusion of Expert Testimony
The Supreme Court considered two principles of Georgia law that are in tension. First, trial courts have broad discretion to manage their cases and to set deadlines in scheduling orders. Since compliance with those orders is “of paramount importance” to effective case management, judges must be given broad discretion to enforce them.
Second, the exclusion of a witness is a “harsh sanction” that should not be used to punish noncompliance with a scheduling order if a lesser sanction will suffice. Only sanctions that “vindicate the court’s authority” should be imposed.
To reconcile those competing principles, trial courts must exercise their discretion in a reasonable way. The state supreme court decided that trial judges cannot automatically default to the exclusion of an expert witness based solely on a late disclosure, because the automatic imposition of a sanction is not an exercise of discretion. Courts must instead weigh the facts and make a ruling that is fair to both parties.
In this case, the court acknowledged that Lee didn’t create the problem but excluded his rebuttal expert solely because he missed a disclosure deadline that he arguably had no opportunity to meet. The court abdicated its duty to exercise discretion by excluding the expert as an automatic sanction for a belated disclosure. The state supreme court thus reversed the court of appeals’ opinion and overruled a string of court of lower court opinions that affirmed the automatic exclusion of a witness based solely on a violation of a scheduling order.
Factors Courts Must Consider When Sanctioning a Scheduling Order Violation
Going forward, the Georgia Supreme Court requires trial courts to consider four factors when deciding whether the late disclosure of an expert witness should be sanctioned by exclusion of the witness:
- the party’s explanation for the failure to make a timely disclosure;
- the importance of the testimony;
- the prejudice to the opposing party if the witness is allowed to testify; and
- whether a less harsh sanction would be sufficient to ameliorate any prejudice and vindicate the court’s authority.
Granting a continuance of trial or amending the scheduling order to permit discovery regarding the witness are examples of remedies that are less harsh than exclusion of the witness. Whether to select one of those remedies will depend on how the court weighs and balances the other factors.
Discretion should be exercised in the first instance by the trial judge, not by the appellate court. The Georgia Supreme Court therefore remanded the case to the trial judge with the direction to allow the parties to present evidence and arguments relevant to the identified factors. It will be up to the trial judge to decide whether Lee’s expert should be allowed to testify in a new trial, or whether no new trial is necessary because the court would have excluded the witness after conducting the appropriate analysis.