Lee v. Smith
816 S.E.2d 784
Ga. Ct. App.2018Background
- Smith sued Lee after a 2014 car accident, alleging Lee's negligence caused serious injuries and seeking damages including pain and suffering, medical expenses, and lost future earnings/diminished earning capacity.
- Parties exchanged discovery and the court entered a final scheduling order requiring identification of all trial witnesses, including experts, by May 12, 2017; the parties selected that date.
- On May 12, 2017 Smith supplemented to identify a sports agent as his expert to testify on the impact of injuries on Smith’s athletic career and future earnings; Smith had earlier indicated he might present evidence of diminished future wages.
- Lee did not identify a rebuttal expert until June 28, 2017 (after the deadline) and moved to have that expert excluded; the trial court excluded Lee’s expert for violating the scheduling order.
- At trial Lee admitted liability; the sole issue was damages. Smith’s agent testified about typical professional high jumper income streams and opined conservatively on Smith’s lost future earnings; the jury awarded $2,000,000.
- Lee appealed, arguing (1) erroneous exclusion of his expert, (2) denial of directed verdict on future lost earnings as speculative, and (3) erroneous refusal to submit a special verdict form.
Issues
| Issue | Plaintiff's Argument (Smith) | Defendant's Argument (Lee) | Held |
|---|---|---|---|
| Exclusion of late-identified rebuttal expert | Court properly enforces scheduling orders; Lee had prior notice clues of future-earnings claim | Exclusion was abuse: Smith only disclosed lost-earnings claim and expert on the deadline; Lee lacked time to name rebuttal expert | Affirmed: exclusion proper as Lee violated clear scheduling order by naming expert after May 12 deadline |
| Denial of directed verdict on future lost earnings | Smith: evidence (doctor and agent) showed permanent injury and diminished earning capacity; sufficient to submit to jury | Lee: lost future earnings claim was speculative and should be dismissed | Affirmed: some evidence supported diminished earning capacity; directed verdict denied |
| Request for special verdict form dividing special vs general damages | Smith: not required because special damages claim was supported by evidence | Lee: special verdict needed to show jury awarded speculative future wages | Affirmed: trial court did not abuse discretion in refusing special verdict form |
| Discretion review standard for expert exclusion | N/A | N/A (centered on abuse of discretion and scheduling-order enforcement) | Court applied abuse-of-discretion standard and found no abuse |
Key Cases Cited
- Moore v. Cottrell, Inc., 334 Ga. App. 791 (2015) (trial court may exclude expert not timely identified under scheduling order)
- Kohler v. Van Peteghem, 330 Ga. App. 230 (2014) (no abuse of discretion excluding expert named in violation of discovery deadlines)
- Robert E. Canty Bldg. Contractors v. Garrett Machine & Constr., 270 Ga. App. 871 (2004) (directed verdict standard and review under any-evidence test)
- Myrick v. Stephanos, 220 Ga. App. 520 (1996) (distinction between loss of future earnings and diminished earning capacity; proof required)
- Alto Park Super Mart, Inc. v. White, 216 Ga. App. 285 (1995) (future-earnings instruction permissible where evidence suggests worsening injury and potential lost work capacity)
- Michaels v. Kroger Co., 172 Ga. App. 280 (1984) (artists and intermittent earners may recover for diminished earning capacity despite irregular income)
- News Publishing Co. v. DeBerry, 171 Ga. App. 787 (1984) (submission of special verdict rests in trial court's discretion)