Lee v. Smith

Facts

In the case of Lee v. Smith, the Plaintiff, David Smith, was an internationally ranked college high jumper. In September 2012, he sustained injuries in a car accident, including a fractured left hip.  He graduated from college in 2014 and continued training as a high jumper while earning his master’s degree.  

Smith filed this lawsuit in 2014, and the Defendant responded and sent discovery requests. On July 1, 2015, the Plaintiff responded to the Defendant’s interrogatories. In response to an Interrogatory that asked Plaintiff to identify testifying experts, Plaintiff did not disclose any and stated that he had not made a decision as to which experts would testify. 

His answer to an interrogatory on special damages only included medical and rental car expenses. He continued claiming no lost income or wages throughout the responses.  

At the same time, Smith also responded to a document request that asked for lost wage documentation and stated in response that he was not claiming past or current lost wages, but that he may present evidence at trial on diminished future wages or earning capacity.  

Plaintiff went on to compete in the 2016 Olympics and completed his master’s degree later that year. In January 2017, he underwent surgery to remove a bone chip from his hip joint. He alleged that the injury arose from the 2012 car accident.  

On March 30, 2017, the Plaintiff supplemented his response to an interrogatory with the following: 

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.  

That same day, the Plaintiff’s attorney provided defense counsel with a settlement demand for $3 million. It explained that Smith could no longer compete as an Olympic athlete and world champion and would lose out on future earnings.  

On April 5, 2017, the trial court entered its fourth consent scheduling order. In the orders, the parties needed to identify all witnesses by May 12 and complete discovery depositions by June 15. All trial depositions had to be completed by July 28, and the order scheduled trial for August 8.  

On April 14, 2017, a new defense attorney filed an appearance. A few weeks later, the Plaintiff’s new agent, Lamont Dagen, emailed Plaintiff’s counsel regarding Smith’s career and provided opinions about how the car crash derailed it. Mainly, the injury stopped his Olympic career and future earnings from contracts, sponsorships, incentives, appearances, and other earnings associated with his profession.  

The Plaintiff supplemented his interrogatory responses again on May 12, 2017. The new supplement read: 

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 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 v. Smith, 365 Ga. App. 359, 361–62 (2022).

Defense counsel requested to depose Dagen and receive additional discovery regarding the Plaintiff’s sports agents, past earnings, and anticipated future earnings. He deposed Dagen on June 20, 2017.  

One week later, the Defendant identified a rebuttal expert, John Nubani, and scheduled an evidentiary deposition for July 28.  

At the July 19 pretrial hearing, the Plaintiff argued that Nubani should be excluded as he was not identified until after the May 12 deadline for witnesses. Counsel argued that Nubani’s testimony would prejudice the Plaintiff because Dagen would not have time to review Nubani’s testimony before trial. The trial court agreed and excluded Nubani.  

The trial proceeded as planned on August 7. The Plaintiff’s case went as follows: 

• A treating physician explained that the Plaintiff’s hip fracture did not heal correctly, making surgery necessary. 
• The same physician opined that Plaintiff could not return to high jumping at the same level he had reached before the fracture and surgery.  
• The Plaintiff testified about the injury’s impact on his performance and how it kept him from becoming a professional athlete.  
• Dagen explained Plaintiff’s lost wages and lost earning potential to the jury. He opined that if Smith did not sustain injuries or need surgery, he would likely have a ten-year career as a professional high jumper and earn $1 million over the course of his career.  

The defense had less to go on since there was no expert testimony. So, the case focused on claiming: 

• The auto accident and resultant injuries did not impair the Plaintiff’s performance. 
• Damages claims were speculative since the Plaintiff did not present any pending or canceled contract offers.  

Throughout the trial, the Plaintiff’s attorney emphasized that the Defendant did not present any rebuttal evidence to Dagen’s claims. After deliberation, the jury returned a $2 million verdict for the Plaintiff.  

The Defendant appealed, claiming the trial court’s decision to exclude his expert opinion was an abuse of discretion. He further appealed to the state Supreme Court after the Court of Appeals affirmed the trial court’s decision.  

The state Supreme Court reversed since untimeliness alone does not justify excluding an expert witness. It remanded the matter back to the trial court to weigh the circumstances of the Defendant’s noncompliance with the scheduling order in accordance with the Supreme Court’s instructions. 

The trial court reviewed the matter on remand and still decided to exclude the Defendant’s expert witness. It also granted the Plaintiff’s motion for a supersedeas bond and ordered the Defendant to pay a cash bond of $3 million. The Defendant’s insurer, Travelers Casualty and Surety Company of America, filed a surety bond and this appeal followed.  

Issues and Holdings

The issues in Lee v. Smith were:

1. Did the trial court abuse its discretion by excluding the Defendant’s late-disclosed expert witness? 
2. Did the trial court abuse its discretion by requiring the Defendant to pay a supersedeas bond? 

Regarding these matters, the court ruled:

1. No. 
2. No. 

Reasoning

If a party discloses a witness after a deadline, excluding that witness is the court’s more severe sanction. Case law encourages trial courts to consider more than untimeliness when deciding whether to exclude or permit a late-disclosed witness. Specifically, the court should consider these factors: 

• The party’s explanation for their failure to disclose by the witness deadline. 
• The importance of the testimony to that party.  
• Any prejudice to the opposing party if the witness is allowed to testify. 
• Whether a less harsh remedy would ameliorate the prejudice and vindicate the trial court’s authority.   

If a court considers these factors before excluding the witness, the decision will likely survive an appeal. But if a court excludes a witness on timeliness alone, it is an abuse of discretion that an appellate court can overturn.  

Quality of Findings 

The Defendant started his argument by claiming the trial court merely paid lip service to these factors. After reviewing the findings in a light most favorable to the jury verdict, the state Court of Appeals concluded:  

• The trial court made specific findings regarding each factor, including a “wanting” explanation for the late disclosure.  
• The Defendant never alerted the court to a problem regarding witnesses before the July 19, 2017, hearing.  
• The trial court also cited specific findings regarding the other factors, including testimony importance, the Defendant’s failure to proffer the witness, prejudice to the Plaintiff, and whether other remedies were sufficient.  

Generally, the Court of Appeals concluded that the trial court offered more than lip service and backed up its findings. So, the opinion moved forward with considering each factor separately. 

Applying the Factors 

The Defendant argued that the trial court abused its discretion by misapplying the four factors. In its opinion, the Court of Appeals addressed each factor separately and explained why the trial court did not abuse its discretion.  

First Factor: Defendant’s Explanation for Failure to Disclose Witness

The Defendant explained that he did not know about testimony regarding the Plaintiff’s lost future earnings until later. He believed he should be allowed to rely on earlier discovery answers where the Plaintiff claimed no damages arising from lost past or current wages.  

However, the Defendant learned of the expert in May 2017, but it took over a month to find a rebuttal expert witness. It then took the Defendant another two months to alert the court. Also, the Plaintiff indicated he might present evidence of diminished future wages or earning capacity in July 2015 and later in May 2017.   

The Court of Appeals explained that even though the Defendant did not know the exact testimony, the Plaintiff still notified him of the possibility of diminished earning capacity and lost future income. So, the Defendant had notice to start finding an expert witness as soon as May 2015. 

The Defendant continued on this factor by arguing that the trial court abused its discretion by focusing on counsel’s failure to alert the court to the issue immediately. However: 

• The Plaintiff notified the Defendant as early as June 7, 2017, that they would not agree to any discovery outside the deadlines outlined in the scheduling order.  
• The Plaintiff also immediately objected to the Defendant’s June 28, 2017, disclosure of the rebuttal witness.  
• The trial court did not abuse its discretion by faulting the Defendant for not informing the court of a problem before July 19, 2017.  
• The Defendant was aware of the Plaintiff’s claim for future or diminished wages before May 2017 and failed to act promptly to find and identify a witness for the court.  

Therefore, the trial court did not abuse its discretion for construing this factor against the Defendant.  

Second Factor: The Testimony’s Importance to Defendant

The Defendant argued that the rebuttal witness was essential to his defense. His expert, Nubani, would testify that high jumpers don’t have long careers or make much money. But the trial court concluded that the testimony was not as important as the Defendant stated because: 

• Even at the remand hearing, the Defendant never provided a proffer of Nubani’s expected testimony and its statements on the Plaintiff’s lost earnings. 
• The Defendant’s failure to enter a proffer made it impossible for the trial court to form a reasonable opinion on the testimony’s importance. 
• The Defendant’s primary defense was causation, including whether the Plaintiff had a pre-existing injury that made car accident recovery worse and already negatively affected his career.  

Considering these facts, the trial court concluded that the testimony was not so important as to justify a less harsh remedy than excluding the witness. The Court of Appeals agreed.   

Third Factor: Prejudice to the Plaintiff

The Defendant believed there was no prejudice to the Plaintiff because he could schedule a deposition within the timeframe outlined by the scheduling order. But that created an exceedingly demanding schedule that the court did not believe was reasonable.  

The trial deposition deadline was July 28, 2017, with the trial starting on August 7. The Defendant scheduled the deposition in Pittsburgh on July 28, five days before the trial. Another deposition was set to happen in Birmingham on July 25 involving one of the Plaintiff’s treating physicians. This schedule made it impossible for the Plaintiff and his expert witness to thoroughly examine Nubani’s testimony before the trial.  

The Court of Appeals agreed with the trial court’s conclusion on this factor. With the travel and time needed to secure deposition transcripts, the Plaintiff’s expert couldn’t prepare adequately to address Nubani’s testimony.  So, both courts concluded that the prejudice against the Plaintiff was greater than any prejudice against the Defendant.  

Fourth Factor: Alternatives to Excluding a Witness

The Defendant claimed that less harsh remedies were available to the trial court. It could grant a continuance and allow more time for depositions or force parties to adhere to the arduous deposition schedule.  

Neither the trial nor the Court of Appeals believed that was a fair result. The need for a continuance arose from the Defendant’s failure to stick to the scheduling order. Then, the Defendant continued his shortcomings by failing to ask the court for relief when issues arose and less harsh remedies were available to both parties without prejudice. So, the courts agreed that the harm to the Plaintiff by imposing less harsh remedies outweighed the harm to the Defendant by excluding the witness.  

Supersedeas Bond 

The Defendant also argued the trial court abused its discretion by ordering a supersedeas bond before appeal. However, he did not pay cash for it. His insurance company filed a surety bond. As a result, the Court of Appeals considered the issue moot. 

Conclusion

The primary lesson here is to follow the scheduling order as closely as possible. You may come across opposing counsel who is not flexible when you need an extension. If that is the case, be prepared to explain the matter to the court (and before any deadlines expire). Sometimes, there are good reasons for the delay. Nevertheless, you must discover these issues and bring them to the court’s attention early.  

This case also shows that when the plaintiff’s counsel is on top of matters and practices good case management, a trial court is more likely to rule against a defendant who attempts to delay the case or acts in bad faith.  

While there is no suggestion of the Defendant’s intent in this case, the courts make it clear that the delay was unjustified and explained poorly. Sometimes the best course of action is to keep moving forward on your case, and if you have a difficult opposing counsel or defendant, let that work itself out with the court. It is unlikely to work in their favor.  

To learn more about The Champion Firm and the personal injury practice areas we cover, visit our main website here. If you’re an attorney seeking to refer a case or partner with us as co-counsel, please reach out here.

Citation: Lee v. Smith, No. A22A1023 (Ga. Ct. App Sep. 16, 2022)