Back in 2018, we discussed Lee v. Smith, a personal injury lawsuit involving a former Olympic high jumper who suffered a fractured left hip and other injuries in a 2012 car accident. The victim sued the negligent driver and won a $2 million jury verdict. The defendant appealed in part because the trial judge prevented one of his expert witnesses from testifying at trial.
The Georgia Court of Appeals said the judge did nothing wrong in making this decision, but the Georgia Supreme Court was not so sure. While the state’s highest court did not immediately order a new trial, in a February 10, 2020 decision, it did order the trial court to reconsider its original ruling.
Lee v. Smith
In any personal injury case, both sides must identify any witnesses whom they plan to call at trial. In other words, there is no such thing as a “surprise” witness. Here, the judge ordered both sides to identify all of their witnesses by May 12, 2017, which was roughly three months before the scheduled start of the trial. Exactly on May 12, the plaintiff disclosed he planned to call his sports agent as a witness. The agent would testify as to the plaintiff’s “future lost earnings” as a result of the accident and its impact on his high jump career.
After conducting a deposition of the sports agent, the defense said it planned to call its own rebuttal witness. The plaintiff moved to exclude this witness, as the May 12 deadline had already passed. The trial judge granted the plaintiff’s motion.
The Supreme Court held this was an “abuse of discretion” by the trial judge. To exclude the defense witness solely on the basis of “late identification” was too harsh a sanction that prejudiced the defendant’s ability to present his case. Indeed, without a rebuttal witness at trial, the jury heard uncontested testimony from the plaintiff’s agent regarding the extent of his lost future income.
The Supreme Court therefore returned the case to the trial judge, with instructions to reconsider the decision to exclude the defense rebuttal witness, applying the following factors:
- the explanation for the defense’s failure to disclose the witness prior to the deadline;
- the importance of the witness’ testimony;
- the prejudice to the plaintiff if the witness is allowed to testify;
- whether or not there is a “less harsh” remedy–i.e., something other than exclusion–that can offset any prejudice and “vindicate the trial court’s authority.”
If the trial judge, after considering these factors, still believes the rebuttal witness should have been excluded, the Supreme Court said a “new trial would be unnecessary.” (Of course, the defense could still appeal that decision.) But if the witness was improperly excluded the first time, then the defendant would be entitled to a new trial.