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Outback Steakhouse of Florida7/25/2005
, 322 (Ga. 1992), where the Court found it apparent that in addition to arguing for legitimate damages, [Levant]'s counsel informed the jury that the railroad was maintaining its tracks with an inadequate number of people and would continue to do so unless the jury made them pay; that the railroad did not care about [Levant]; that the jury should do right by [Levant] whom counsel considered to be a good man and his friend; and, that the jury should stamp out those (the corporate appellant) who would try to have the jury not give [Levant] an award of adequate damages because [Levant] is a "labor man." Inherent within [Levant]'s closing argument is the message that the big railroad needed to be punished for these transgressions.
The court accordingly reversed the verdict, finding the verdict raised an irresistible inference that an improper cause invaded the trial.
We agree with Outback's characterization of the statement by Markleys' counsel as an improper invitation to the jury to punish Outback. However, in light of the extensive damages the plaintiffs suffered and our conclusions as explained above that the various actions of the Markleys' counsel, while improper, did not amount to reversible error, we cannot find such an "irresistible inference" in the case before us and therefore cannot reach the same result as did the CSX court. We must accordingly decline to invade the province of the jury to determine the damage award.
Evidence of Special Damages Outback asserts discovery abuse in the Markleys' failure to disclose special damages about which Pamela Porter, their expert witness on post-traumatic stress disorder (PTSD), would testify. In an interrogatory, Outback asked the Markleys to disclose all special damages they would claim. The Markleys indicated they anticipated additional surgeries or other medical procedures would be performed, but the extent or cost of the medical treatment was not known. They did not indicate they would claim damages for PTSD, nor did they update the interrogatory responses to so indicate.
Porter testified without objection that Lisa Markley would need weekly psychiatric treatment for the rest of her life to deal with depression, and she testified to the cost of the treatment. Outback did not object on the basis of the Markleys' failure to supplement discovery regarding the special damages until after that evidence was before the jury. It objected on that ground when the Markleys offered an exhibit summarizing the cost of Lisa's future treatment for PTSD at over 1.3 million dollars.
The court overruled the objection because no objection on that ground had been made earlier and because the interrogatory response was not "so limited as to not put the other side on notice that there would be additional expenses that were anticipated medical in nature." (Tr. at 1255.) Accordingly, we cannot say Outback was entitled to a new trial based on this failure by the Markleys to supplement their discovery responses.
CONCLUSION
The Markleys' counsel's violation of T.R. 26 in failing to disclose witness Roysdon would change her testimony, while misconduct, does not require reversal because Outback chose to cross-examine Roysdon; the trial court's refusal to give Outback's tendered instruction on non-party fault and its limitation of Outback's impeachment of witness McLaren were not abuses of its discretion; and the jury's damage award against Outback was supported by the evidence. We must accordingly affirm.
Affirmed.
SHARPNACK, J., and BAILEY, J., concur.
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