In Georgia, a new decision was reported by the Georgia Supreme Court that addressed the late disclosure of an expert witness. In Lee v. Smith, 307 Ga. 815, 832 SE 2d 870 (2020), Plaintiff’s counsel identified an expert witness on the last day to disclose witnesses under a consent scheduling order, effectively leaving Defense counsel with no time to identify a rebuttal expert.
When Defense counsel later identified a rebuttal expert, the trial court excluded the rebuttal expert solely because, under the consent scheduling order, the expert was identified late. When the case reached the Georgia Supreme Court, the Supreme Court held that a trial court cannot exclude an expert witness solely because the witness was identified after the deadline set in a scheduling order, by the discovery rules, or case management order. Instead, a trial court must also consider:
(1) the explanation for the failure to disclose the witness,
(2) the importance of the testimony,
(3) the prejudice to the opposing party if the witness is allowed to testify, and
(4) whether a less harsh remedy than the exclusion of the witness would be sufficient to ameliorate the prejudice and vindicate the trial court’s authority. Ultimately, the case was remanded so the trial court could reconsider its ruling excluding the rebuttal expert considering the four factors identified by the Georgia Supreme Court.