Georgia Court of Appeals Grants New Trial Because Witness Improperly Excluded

The Georgia Court of Appeals has reversed a defense verdict and ordered a new trial because the trial court improperly excluded the relevant testimony of a witness who was not disclosed in discovery. Plaintiff suffered post-operative paralysis following back surgery. Plaintiff sued the surgeon and his group, identifying one expert witness on standard of care and causation. Plaintiff alleged the doctor delayed diagnosing and treating post-operative leg weakness, which progressed to paralysis. Later surgery revealed the presence of abscesses. An electronic record entry by the doctor indicated that he was aware Plaintiff was unable to move his legs. However, other evidence showed that the same doctor was in another procedure at the time of the electronic record entry. The causation theory pivoted around whether the doctor knew of Plaintiff’s paralysis at the time of this electronic record entry.

The parties conducted “extensive discovery,” apparently under a scheduling order. The parties also submitted a consolidated pretrial order. During the case-in-chief, Plaintiff called the defendant physician and asked one question: whether the doctor was at the bedside at the time of the electronic record entry. The doctor denied that he was and that he only learned of the paralysis later, at a time when it was too late to change the outcome. Plaintiff then called an eyewitness nurse to testify that she was with the doctor at the bedside at the time of the electronic record entry. The defense objected on the grounds that the witness was not identified in discovery responses or listed as a witness in the pretrial order. Plaintiff suggested the trial court let the defense depose the witness before she testified. The trial court excluded the witness.

The Court of Appeals reversed, holding that the only proper remedies were a continuance or a mistrial. The Court recognized that a retrial would create a “significant burden” but that it must remain “steadfast” in its commitment to a “fair and impartial jury trial.” The Court concluded the trial court abused its discretion.

Notably, the opinion does not make it clear whether the identity of this nurse was known to the defense or whether even the identity was truly a surprise. Nonetheless, the Court of Appeals’ decision is consistent with its precedent, including Hart v. Northside Hospital, 291 Ga.App. 208 (2008). The take-home message is to ask for a mistrial or a continuance when there is a surprise witness.

The case is Elliott v. Resurgens, P.C., ___ S.E.2d ___ (March 4, 2016).

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