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Nygaard v. Matheny5/24/2005
BLACKBURN, P. J., MILLER and BERNES, JJ.
Robert Nygaard and his wife (the Nygaards) filed this medical malpractice suit against Dr. Robert Matheny claiming that Robert Nygaard suffered a massive stroke as a result of Dr. Matheny's negligent care during and after a coronary bypass procedure. Following a trial, the jury returned a verdict for Dr. Matheny. On appeal, the Nygaards contend that the trial court erred when it precluded one theory of their case on the morning of the trial and when it refused their counsel's request to examine prospective jurors in panels of twelve. Finding no error, we affirm.
The record shows that on the morning of trial, the trial court asked the parties if they had any objections to the proposed pretrial order. Dr. Matheny objected to the Nygaards' statement of the case, which referred to the acts of a physician's assistant, Scott Luft, as imputable to the doctor. Dr. Matheny pointed out that on the workday before trial, the Nygaards had supplemented their interrogatory responses to show that their experts now planned to opine as to the care and treatment rendered by Luft, an employee of a cardiology group as to which the statute of limitations had run. The Nygaards had not deposed Luft, however, and had made no previous allegations that Luft had been negligent.
The trial court noted that the parties had previously agreed that no new opinion testimony would be presented and that they would proceed to trial based on that understanding, and asked the Nygaards' counsel to show where in the discovery process they had identified Luft as a source of Dr. Matheny's negligence. After extensive argument, the trial court held that it would not allow the Nygaards to show that Dr. Matheny could be held liable by reason of Luft's negligence.
1. The Nygaards claim that the trial court erred by precluding their theory of negligence against Dr. Matheny based on the negligence of Luft, and that the case should have been continued to allow Dr. Matheny to prepare a defense to this new theory. We disagree.
If the trial court had been presented with the Nygaards' supplement to their discovery responses in a timely fashion, then a continuance might have been the appropriate response. See OCGA § 9-11-26 (e) (1) (B) (requiring parties to supplement discovery responses concerning scope of expert testimony); Hunter v. Nissan Motor Co. of Japan, 229 Ga. App. 729 (1) (494 SE2d 751) (1997) (exclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission). In the pretrial conference held only a week before, however, the parties had agreed not to come forward with any additional expert testimony. When the Nygaards proposed to change the testimony of their previously identified experts to support their theory based on Luft's negligence, the trial court interpreted this as a violation of the pretrial agreement. Specifically, the trial court found that (1) the Nygaards had abused the discovery process when they failed to raise the issue of Luft's behavior in a timely way; (2) both parties had agreed the week before that "no new opinions of experts would be allowed to come forward in this trial and therefore delay this trial"; and (3) to allow the Luft claim to go forward would prejudice Dr. Matheny.
The purposes of a pretrial conference include the clarification of issues and the limitation of the number of expert witnesses. OCGA § 9- 11-16 (a) (1), (4); see Dept. of Human Resources v. Phillips, 268 Ga. 316, 318 (1) (486 SE2d 851) (1997). An agreement among the parties to restrict new expert opinions after the pretrial conference is consistent with these purposes. See Long v. Marion, 257 Ga. 431, 433
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