Georgia Court of Appeals Affirms Exclusion of Hidden Affidavit

The Georgia Court of Appeals has affirmed exclusion of an affidavit of a key witness in a medical malpractice case. Plaintiff worked for a physician office. She suffered a back injury and was referred to the defendant anesthesiologist for pain management. During the second injection by the Defendant, Plaintiff contends she complained of pain shooting down her leg and additional problems.

The issue at trial was when the Defendant learned about the new complaints. The anesthesiologist testified that she did not learn about the complaints for several days until it was too late to do anything. Plaintiff testified that she told Defendant about her complaints much earlier.

During discovery, Defendant sent interrogatories regarding witnesses generally, witnesses who had expressed opinions about Defendant’s care, and requesting documents. Plaintiff’s interrogatory responses identified her employer generally, but not as someone who would opine about Defendant’s care specifically. Later, Plaintiff’s employer executed an affidavit in which he testified he had a phone call with Defendant very early on about the new complaints. Plaintiff did not disclose the affidavit to Defendant in discovery.

At trial, Plaintiff’s employer did not recall his alleged conversation with Defendant. Plaintiff’s counsel then sought to use the affidavit to refresh his memory and to admit it into evidence. Defendant objected because the affidavit had not been disclosed, which Plaintiff admitted, but contended it was work product. The trial court excluded the use of the affidavit.

Plaintiff appealed. The Court of Appeals reversed, but the Georgia Supreme Court vacated the case and remanded the case back to the Court of Appeals for further consideration in light of the 2017 decision of Resurgens, P.C. v. Elliott. The Court of Appeals held the trial court did not abuse its discretion, ruling that Plaintiff’s interrogatory responses required supplementation regarding the employer’s testimony. When Plaintiff did not supplement the discovery after obtaining the affidavit, the initial interrogatory response became misleading, thereby justifying the sanction.

Take-home message: there is tension between Section 9-11-26(e)(2)(B), which does not require supplementation when the response was “complete when made” unless the respondent later learns the original response is no longer true, and Section 9-11-37, which requires supplementation of prior responses that are incomplete, ambiguous, or no longer complete accurate.

The case is Anglin v. Smith, 2018 Ga.App. LEXIS 405 (June 21, 2018).

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