When the clock runs out: take action against late expert disclosures

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Don’t Let Last-Minute And Prejudicial Tactics Derail Your Case

Surprises are not uncommon in personal injury litigation. One of the most common and challenging is the eleventh-hour disclosure of an expert witness. Whether it be the day before a pre-trial order is due or the week before trial, it is important to understand how to exclude expert testimony. Late expert disclosures can disrupt your strategy. If you use the correct legal motion, you can prevent late expert testimonies from affecting the result of your case.

Why Does it Matter?

Timelines are critical in litigation. When a defendant introduces an expert witness at the last minute, it isn't just a mere procedural hiccup. It's a potential game-changer. Knowing when expert testimony is required and how to respond swiftly and effectively with a motion to strike expert witness or Daubert motion can be the difference between a favorable verdict and an unfavorable one.

Understanding the Case Law: Know Your Rights

Expert witnesses play an important role in personal injury cases. However, the improper or untimely notification of these witnesses can unfairly prejudice a case. Recognizing this, Georgia's appellate courts have provided your first step to framing an effective counter-strategy – with tools like the motion to limit expert testimony:

  • Lee v. Smith, 307 Ga. 815 (2020): This landmark case by the Supreme Court of Georgia established a four-factor test to regarding late identification of an expert witness.
  • Georgia Dept. of Human Resources v. Phillips, 268 Ga. 316, 318 (1997): Discusses the idea that a pretrial order is like the 'rudder of a ship of litigation.’
  • Doherty v. Brown, 339 Ga. App. 567, 575 (2016): Reinforces the court's authority to exclude an expert's testimony if the expert was not correctly identified.
  • Vineyard Indus., Inc. V. Bailey, 343 Ga. App. 517, 521 (2017): Highlights the severity of sanctions for last-minute identifications.
  • Miller v. Lynch, 351 Ga. App. 361, 367-68 (2019): Solidifies the sanctions of withholding essential documents until the brink of the pre-trial order.
  • Thomas v. Peachtree Orthopaedic Clinic, P.C., 290 Ga. App. 869, 872-73 (2008): Underlines the importance of adhering to stipulated deadlines in case management orders.
  • Shedd v. Goldsmith Chevrolet, 178 Ga. App 554, 555 (1986): Emphasizes the binding nature of agreements that parties voluntarily engage in.

Take the Next Step

Download our free sample motion in limine to exclude expert testimony and fortify your approach to eleventh-hour expert witness disclosures. Click 'Download Here' to begin. Remember, in the world of personal injury litigation, always be the attorney that’s one step ahead:









COMES NOW, Plaintiff, John Brown, in the above-styled civil action, and hereby files their Motion to Exclude Testimony of Defendant’s Expert Witness, showing the Court as follows:

Issues Before The Court

  1. Can Defendant brazenly disregard discovery deadlines, audaciously defy this Honorable Court’s orders, and sidestep their ongoing duty to supplement their discovery responses?
  2. Is it equitable for Defendant to disclose an expert witness at the eleventh hour, knowing prejudice is inevitable?

Statement OF Facts

  1. The essential facts of this case are not in dispute
  2. On [DATE], this Court entered a “Scheduling Order” / “Consent Case Management Order.”
  3. In paragraph [XX] of the order, this Court noted the following sanctions for failure to comply with the terms and obligations outlined:
  4. Per this Court’s order, expert witnesses were to be disclosed by [DATE].
  5. On [DATE], Defendant filed their disclosure of expert witness, [NAME].
  6. Defendant’s disclosure came [XX] days after the Court ordered deadline for disclosure and depositions.
  7. Additionally, Defendant has failed to supplement their discovery responses regarding Plaintiff’s Request for Production of Documents regarding any expert witness Defendant may expect to testify at trial.
  8. Defendant has failed to provide any “explanation for the failure to disclose the witness.”
  9. Defendant has failed to note any great “importance of the testimony.”
  10. The prejudice to the Plaintiff if the witness is allowed to testify would be substantial.
  11. There is no “less harsh remedy than the exclusion of the witness [which] would be sufficient to ameliorate the prejudice and vindicate the trial court's authority.”
  12. Plaintiff incurred attorneys’ fees and expenses as a result of Defendant’s late notice and disclosure. Plaintiff’s Counsel’s billing rate is $[RATE] per hour. The law firm’s experienced personal injury staff, in the Atlanta area, is billed out at an hourly rate of $[RATE]. Due to Defendant’s conduct, Plaintiff’s Counsel and staff spent a total of [XX] hours, combined, for a total of $[AMOUNT] in attorneys’ fees and expenses to research, write, draft, and file this Motion in addition to discussions with their client.

Citations Of Authority

  1. The Supreme Court of Georgia established the test for late identification in Lee v. Smith, 307 Ga. 815 (2020). The four factors to be considered are: (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. Id. At 876.
  2. In Georgia Dept. of Human Resources v. Phillips, the Supreme Court of Georgia held that, “the pretrial order is likened to a 'rudder to the ship of litigation' and is essential for the efficient resolution of civil matters. Courts and litigants should take...

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