Georgia Supreme Court Rules Trial Court May Exclude Intentionally Withheld Surprise Witness

The Supreme Court of Georgia unanimously reversed the Court of Appeals’ decision in the case of Resurgens, P.C. et al. v. Elliott, decided May 30, 2017, and determined that the trial court did not abuse its discretion when it excluded a rebuttal witness, as a discovery sanction, whose name was deliberately withheld during discovery.  Plaintiff was a patient of the Defendants, and filed suit in 2011 claiming that the Defendants failed to timely diagnose and treat an abscess in his thoracic spinal cord which resulted in paralysis.  Following four years of discovery, the case went to trial and resulted in a defense verdict.  The Plaintiff filed a direct appeal which challenged the trial court’s exclusion of a rebuttal witness in the case.

At trial, a Defendant, who was the treating physician, was asked by the Plaintiff’s attorney whether the Defendant was at the bedside of the Plaintiff at a particular time.  The Defendant denied being present.  The Plaintiff then excused the Defendant, and called a rebuttal witness who was a nurse that would purportedly testify that the Defendant was in fact bedside.  Defendant’s counsel objected, based on the fact that the witness had not been previously disclosed in discovery, the pretrial order, or in any communication between counsel.  Plaintiff counsel argued that this particular witness fell within its interrogatory response “catch-all,” that she was a “treating medical provider…a person named in the medical records…and an impeachment witness.”  Therefore, while she was not specifically named, she was referenced.  Furthermore, if the discovery response was not clear enough, the onus was on the defense to request clarity or move the Court to compel a different response.  The trial court ruled in favor of the Defendants, stating that the Plaintiff had determined to call the nurse as a witness before trial and intentionally withheld the witness’s name.  As such, the Defendants were entitled to the discovery sanction of excluding the witness in order to “allow the trial to proceed without surprise, without ambush.”  The Plaintiff appealed to the Georgia Court of Appeals who reversed the trial court.

The Court of Appeals stated that in the event a previously undisclosed witness is called to testify, the only remedy is to move for a postponement for a sufficient length of time to allow the objecting party to prepare, or to move for a mistrial.  The Court of Appeals further stated that it is never appropriate for a trial court to exclude such a witness, even in cases where there was clear deception.  The exclusion of a witness with probative value was an extreme response, and the discovery sanctions found in O.C.G.A. § 9-11-37(d)(1) are not available.  The Defendants applied for certiorari to the Supreme Court of Georgia who granted review.

The Supreme Court reversed the Court of Appeals.  The Court held that when a party provides false or deliberately misleading discovery responses, the aggrieved party is entitled to more than mere postponement or mistrial.  The aggrieved party is entitled to discovery sanctions found in O.C.G.A. § 9-11-37(d)(1) which includes, among others, exclusion of a witness.  The Court explained that a party who receives a substantive answer to a discovery request is entitled to believe that answer, and are not required to file blind motions to compel in hope of discovering the opposing party’s deception.   Furthermore, false or intentionally misleading responses are worse than a failure respond, because the aggrieved party may never learn that it failed to receive the truth.  Therefore, the aggrieved party should be entitled to discovery sanctions, including exclusion of the undisclosed witness.  To allow otherwise, simply because the witness may offer some probative value, would encourage and reward deceptive behavior.

The take-home is that parties who face deceptive tactics by opposing counsel during trial are no longer confronted with the only options being a continuance or a mistrial, which are burdensome and expensive.  There are now a severe repercussions for those attorneys who intentionally deceive opposing parties during discovery.

Further take-home is found in footnote 10 of the opinion, where the Supreme Court stated “[we] caution the bench and bar against relying on such “catch-all” categories in this manner; candor and cooperation, as opposed to “gotcha” moments and gamesmanship, should be encouraged between litigating parties.”  What is clear now for plaintiff and defense counsel in Georgia is that routine discovery responses such as, “any medical provider named in the medical records,” may no longer be sufficient once trial has begun.  Parties should take the time to list the individual names of potential witnesses and other evidence well before trial or risk their exclusion

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

Georgia Supreme Court Reverses $3.7 Million Verdict on Foreseeability Grounds

The Supreme Court of Georgia unanimously reversed the Court of Appeals’ decision in the case of Goldstein Garber & Salama v. J.B., decided February 27, 2017, and determined that the Defendant was entitled to a directed verdict at trial.  Plaintiff was one of a number of patients who were sexually assaulted while sedated by a certified registered nurse anesthetist (CRNA) who worked at the Defendant’s dental practice as an independent contractor.  The acts of the CRNA were captured on his cell phone which was later discovered hidden in the practice’s employee restroom.  Prior to the discovery, the practice was unaware of the CRNA’s actions.  Plaintiff filed suit against the CRNA and the dental practice.  Plaintiff later dismissed the CRNA when he pled guilty to criminal charges and received a life sentence, but the case continued against the dental practice.  Plaintiff claimed that the Defendant was negligent in its supervision of the CRNA, and negligent per se based on O.C.G.A § 43-11-21.1(a) for failing to have required permitting to administer or supervise a CRNA administering general anesthesia.  After trial, a jury awarded the Plaintiff $3.4 million and apportioned 100% of the fault to the Defendant.  The Court of Appeals affirmed the trial court 4 to 3.

After granting certiorari, the Supreme Court determined that the CRNA was an independent and intervening third party wrongdoer responsible for the Plaintiff’s injury.  In this scenario, the Defendant may only be held liable for the actions of the CRNA if those actions were reasonably foreseeable, and a natural consequence of the Defendant’s failure to properly supervise him.  The Court was not persuaded by the Plaintiff’s argument that dentists are generally aware of instances where patients are abused while under anesthesia.  In this matter, the Court found that the Defendant had no prior knowledge of the CRNA’s intervening criminal acts, and that those acts were not reasonably foreseeable.  Furthermore, sexual assault is not the probable or natural consequence of failing to supervise an otherwise qualified nurse anesthetist.  Accordingly, a directed verdict was warranted.

The Supreme Court further held that the Court of Appeals erroneously found that sexual assault was a harm contemplated by the statute governing dentists and general anesthesia, O.C.G.A § 43-11-21.1.  In order for the Defendant to be found negligent per se for a violation of the statute, the Plaintiff must be considered to be within the class of persons that the statute was designed to protect.  Additionally, the harm suffered by the Plaintiff must be one that the statute contemplates guarding against.  In its ruling, the Court of Appeals cited a section in the same chapter as the above statute which stated the chapter’s purpose was to guard against unlicensed activities that negatively affect the “public health, safety and welfare,” and therefore would include sexual assault.  While the Supreme Court found that the statute applied to patients like the Plaintiff, it did not find that the statute applied to the harm.  The Court stated that the statute clearly applies to concerns regarding medical complications which may arise in a dental setting from the improper administration of anesthesia.  Because this would not include sexual assault, the trial court should have granted a directed verdict.  After ruling in favor of the Defendant, the Supreme Court declined to address whether the Defendant waived any objection to the apportionment of fault.

This is not the first time that the acts of this particular CRNA have been the basis of a lawsuit against a medical group.  In 2011, Carlock, Copeland & Stair, LLP defended a group of plastic surgeons who had hired the CRNA as an independent contractor to administer anesthesia.  A similar video of a patient was discovered and that patient later filed a complaint alleging ordinary and professional negligence.  At the motion for summary judgment, Wade Copeland successfully argued that the CRNA’s acts were not reasonably foreseeable and that the surgical practice had no prior knowledge of the acts.  The Cobb County trial court’s decision to grant the Defendant’s motion for summary judgment was not appealed.

The take-home is that unforeseeable criminal acts, such as sexual assault, committed by an independent contractor may not be imputed to the hiring party without prior knowledge of wrongdoing by that particular actor.  Such acts are also not contemplated by statutes designed to regulate health care and medical professionals, and therefore may not be the basis of a negligence per se claim.

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone