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Court Excludes Key Witness at Trial Due to Plaintiff’s Failure to Identify Witness Before Trial


On TV and in movies, we have all seen the “surprise witness” called at trial. But in reality, surprise witnesses are not supposed to occur, and Georgia law permits harsh penalties for parties that fail to disclose witnesses. In a recent Georgia medical malpractice case, one plaintiff found this out when it was too late.

GavelIn that case, the plaintiff filed a medical malpractice claim against a doctor and his medical practice in Fulton County. The plaintiff claimed that the doctor failed to timely diagnose and treat an abscess in his thoracic spinal cord, which paralyzed him. The parties engaged in discovery, and four years later, when the case went to trial, the plaintiff called a nurse to testify. The nurse was not specifically identified as a witness in the plaintiff’s discovery responses or in the pre-trial order, and the defendant argued she should be excluded as a witness.

In the early stages of discovery, the defendant asked the plaintiff to identify potential witnesses. The plaintiff responded by stating that he objected to the request and directing the defendants to his complaint, affidavits, and medical records. He also stated that he would supplement his response if more information became available. The plaintiff later supplemented his responses, but he never identified the nurse as a potential witness or a person with knowledge relevant to the complaint.

Later, the parties submitted a pre-trial order to the court. The plaintiff identified potential witnesses as his “treating medical providers,” “any person name in the medical records,” and “any healthcare professional whose name appears in plaintiff’s records.” The nurse’s name appeared twice in the plaintiff’s medical records but was not specifically listed in the pre-trial order. Prior to trial, the plaintiff did not list her as a witness subpoenaed for trial or in any informal discussions regarding witnesses.

On the second day of the trial, the plaintiff called the nurse as a witness. The defense objected, arguing that she was never identified as a potential witness or person with knowledge. The plaintiff argued that she was identified as a treating medical provider, a person named in the medical records, and an impeachment witness. The trial court prohibited the nurse from testifying. The trial proceeded, and the jury found in favor of the defendants.

The plaintiff appealed, and the Court of Appeals reversed the judgment, finding that the trial court was wrong in prohibiting the nurse from testifying. The defendants appealed to Georgia’s Supreme Court. Georgia’s Supreme Court reversed again, finding the trial court acted within its discretion.

Rule 37 Sanctions

Under Rule 37, O.C.G.A. 9-11-37, if a party provides “an evasive or incomplete answer,” it is to be treated as a failure to answer. The opposing party must then file a motion to compel, obtain an order from the court, and then seek sanctions. If a “surprise” occurs at trial, the court should grant a continuance because the opposing party was responsible for seeking clarification of an evasive or incomplete answer. However, under Rule 37(d), if a party provides a false or intentionally misleading response, other remedies are available because a party is entitled to believe the answer.

The Court’s Decision

The Court determined that in this case, the plaintiff deliberately concealed the name of a material witness, and thus the court had discretion to impose Rule 37(d) sanctions. The Court also concluded that the trial court acted within its discretion in excluding the nurse as a witness. Therefore, the judgment in favor of the defendant remained in place.

Contact a Georgia Medical Malpractice Attorney

Following the procedural requirements in a case can be just as important as the case itself. For that reason, having a skilled personal injury attorney is essential. At the McAleer Law Firm, we have a team of dedicated Georgia medical malpractice attorneys, and we have been compassionately and skillfully assisting our clients in Atlanta and the surrounding areas for over 10 years. Call us at 404-622-5337 or contact us through our online form for a free consultation with one of our medical malpractice attorneys.

See More Posts:

Georgia Court Permits Plaintiffs to Add Defendant and Amend Expert Affidavit Beyond Statute of Limitations, Georgia Injury Attorney Blog, September 25, 2017.

Appellate Court Finds Student “Assumed the Risk” of Drowning in Recent Georgia Wrongful Death Case, Georgia Injury Attorney Blog, August 22, 2017.

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