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Georgia Court of Appeals Affirms Exclusion of Opinion Identified on Eve of Trial – Health Law and Regulation Update Blog Post

Health Law and Regulation Update Blog Post by Eric Frisch.

The Georgia Court of Appeals affirmed a verdict of $6 million in which the jury apportioned 46% of the fault to the Plaintiff and the trial court excluded an expert opinion disclosed on the eve of trial. Plaintiff took Benicar, a blood pressure medication. She alleged her obstetrician failed to write an alternative prescription while she was pregnant or to refer her to another physician for alternative management. Defendant maintained that Plaintiff failed to heed warnings about taking Benicar during pregnancy and that she was responsible for the outcome.

During the course of treatment, Plaintiff disclosed that she had one prior abortion to her obstetrician. In her deposition, Plaintiff disclosed she had four additional abortions. Plaintiff deposed the defendant obstetrician and the defendant’s expert, both of whom testified affirmatively that the injuries were caused by Plaintiff’s failure to stop taking Benicar despite knowing the risks.

Plaintiff moved to exclude evidence of her prior abortions. After entry of the pretrial order and one business day before the start of trial, Defendant supplemented discovery responses to identify a new opinion from his expert that Plaintiff’s failure to disclose the four additional abortions during the course of treatment was a cause of increased risk for preterm labor and delivery and that had he known, he would have referred her to a perinatologist. The trial court held a hearing and Plaintiff argued that Defendant should not be allowed to play the “gotcha game” with the late disclosure. Defendant argued that the opinion was “critical” for the defense and that the late disclosure was not deliberate. The trial court disagreed and excluded the opinion on the grounds that Defendant and his expert knew of the facts supporting the opinion for years during the litigation but only changed the opinions on the eve of trial. The Court of Appeals affirmed the exclusion of the testimony as a reasonable exercise of the trial court’s discretion.

Defendant also claimed that the apportionment of 46% to Plaintiff was “fatally inconsistent” because the jury must have concluded that Plaintiff was aware of the risks of Benicar and took it anyway. The Court of Appeals disagreed, ruling that the jury was equally authorized to conclude that Defendant breached his duty by failing to warn Plaintiff but that she breached her duty to investigate on her own or listened to another doctor when he expressed reservations about Benicar. Either way, the Court of Appeals concluded they could not disturb the jury’s verdict.

Take-Home: Georgia does not require written reports for expert disclosures and the law regarding the defendant professional as an expert on their own behalf is not developed like it is in Federal court. That being said, if someone develops a new opinion, disclosure early and often is advised.

The case is Dunwoody Obstetrics and Gynecology, P.C. v. Franklin, ___ S.E.2d ___, 2022 WL 679989 (March 8, 2022).

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