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Georgia Supreme Court Holds Surprise Witness May be Excluded as Discovery Sanction

In Resurgens v. Elliott, S16G1214 (2017), the Supreme Court of Georgia held that a trial judge had not abused her discretion by excluding a treating nurse as a witness where the plaintiff had not identified the nurse as a potential witness in his discovery responses and had not listed the nurse as a "may call" witness in the pretrial order. The Court appears to have modified the general rule that a continuance is the only appropriate remedy where a party fails to identify a non-expert witness in discovery or the parties' pretrial order and upheld the exclusion of even non-expert witnesses who are not properly identified prior to trial under certain circumstances.

In this medical malpractice case the plaintiff attempted to call a nurse whom he had not specifically identified as a potential witness in his discovery responses or the parties' pretrial order. The nurse's name appeared twice times in the plaintiff's medical records, but the records did not clearly indicate that the nurse provided medical care to the plaintiff or was present at the time when the alleged malpractice was said to have occurred. The defendants objected to plaintiff's attempt to call the nurse as a witness, and the trial court excluded the witness, finding that to allow the nurse to testify would result in unfair "surprise" or trial by "ambush." On appeal the Supreme Court held that O.C.G.A. § 9-11-37(d) permits a trial court to exclude a witness "where a party provides false or deliberately misleading responses to written discovery requests."

The Supreme Court also implicitly held that listing "Plaintiff's treating medical providers," "any person named in the medical records," "any healthcare professional whose name appears in Plaintiff's records," and "other witnesses for the purposes of impeachment or rebuttal" was not sufficient to put the defendants on notice of the potential witness.

The Supreme Court did not address whether the failure to list the nurse as a potential witness in the pretrial order served as an independent ground for excluding the witness from testifying, but noted it was "part and parcel of the trial court's finding that Elliott deliberately concealed the name of a known witness in discovery prior to trial."

Thus, I recommend all witnesses by name be included in interrogatory responses and the pretrial order, or risk the witness being excluded.

By: Richard Tisinger, Jr.

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