ANGLIN Et Al. v. SMITH Et Al.

THIRD DIVISION
DILLARD, C. J.,
REESE AND BETHEL, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

June 21, 2018

In the Court of Appeals of Georgia
A16A1405. ANGLIN et al. v. SMITH et al..

BETHEL, Judge.

In Anglin v. Smith, Case No. A16A1405 (October 12, 2016), this Court granted

Mittie Anglin and her husband a new trial in their medical malpractice action against

Dr. Stephanie Smith and Gwinnett Anesthesia Service, P.C. (GAS). This Court

determined that, regardless of whether the plaintiffs’ counsel had a duty to disclose

a certain affidavit to the defense as part of pre-trial discovery, when the plaintiffs

attempted to utilize the affidavit in the course of trial, the trial court erred by

excluding the affidavit. Anglin, at 2.

Following this Court’s denial of their motion for reconsideration, Dr. Smith

and GAS petitioned the Georgia Supreme Court for a writ of certiorari. That petition

was granted, and the Supreme Court vacated this Court’s judgment and remanded the
case to this Court for reconsideration in light of the Supreme Court’s decision in

Resurgens, P.C. v. Elliott, 301 Ga. 589 (800 SE2d 580) (2017).1

In Elliott, a malpractice action, the plaintiff attempted to call a witness who had

not been specifically identified as a potential witness in the plaintiff’s discovery

responses or in the pre-trial order. Elliott, 301 Ga. at 589. The trial court later

excluded the witness from testifying. Id. This Court ruled that the trial court’s

exclusion of the witness was in error and granted the plaintiff a new trial. Id. See also

Elliott v. Resurgens, P.C., 336 Ga. App. 217 (782 SE2d 867) (2016). However, the

Supreme Court reversed this Court’s decision granting the plaintiff a new trial,

finding that the trial court had not abused its discretion under the discovery rules by

excluding the witness. Elliott, 301 Ga. at 597-99 (2) (b).

In light of Elliott, we now turn to a reconsideration of the issues originally

raised on appeal by the appellants: whether the plaintiffs had a pre-trial duty to

disclose the affidavit they attempted to use to question a witness in the case and, if

so, whether the trial court erred by barring the plaintiffs from using the affidavit at

trial to refresh the witness’s recollection. For the reasons set forth below, we affirm

the trial court’s exclusion of the affidavit.

1
See Smith v. Anglin, Case No. S17C0564 (June 30, 2017).

2
 1. Relevant Factual Background.2

Construed in favor of the jury’s verdict,3 the evidence shows that in 2010

Anglin’s orthopedist referred Anglin to anesthesiologist Stephanie Smith for a series

of lower back injections to treat pain. Smith performed the second injection on May

12, 2010, although she stopped the procedure midway when Anglin complained of

pain shooting down her leg. Anglin left Smith’s clinic following the procedure.

Anglin contends that after the second injection, she suffered weakness and pain in her

lower extremities, such that she was unable to stand, as well as urinary incontinence.

The precise time at which Smith learned of Anglin’s problems following the

second injection was a key issue at the 2015 trial. Smith testified that she assessed

Anglin after the epidural procedure and noted no problems with walking. Other staff

at Smith’s clinic also testified that Anglin would not have been discharged had she

been unable to walk. On May 14, two days after the procedure, Smith received a

2
Because this Court’s original opinion in this case was not designated for
official reporting, we have restated in full this Court’s summary of relevant facts that
appeared in the original opinion.
3
See R.O.C. v. Estate of Bryant, 279 Ga. App. 652, 653 (1) (632 SE2d 429)
(2006) (“Where a jury returns a verdict . . . the evidence is to be construed in a light
most favorable to the prevailing party with every presumption and inference in favor
of sustaining the verdict.”(citation omitted)).

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telephone message that Anglin’s legs were “hardly working at all.” Smith testified

that when she returned the phone call, Anglin said she was having spasms and needed

more pain medication but had no problems with her bowel or bladder function and

was able to walk. According to Smith, Anglin declined to come see her in the office

or go to the emergency room. Smith prescribed medication and said she told Anglin

to go to the emergency room if she did not improve and could not reach Smith or the

doctor on call. Smith said Anglin did not call her to report problems again.

At trial, Anglin told a different version of this conversation, testifying that she

told Smith that her legs were “jerky” and “wouldn’t work” but Smith did not ask her

to come into the office or direct her to the emergency room; she said she couldn’t

remember if Smith asked her about urinary issues. The plaintiffs’ expert testified that,

assuming Anglin had told Smith in that conversation that she could not walk due to

leg weakness, was in pain, and was experiencing urinary incontinence, Smith should

have directed Anglin to come to her office or go to the emergency room for an MRI.

Smith herself testified that she would have sent Anglin directly to the ER if Anglin

said she could not stand up and walk.

On May 18, Anglin visited another doctor who spoke with an orthopedic

surgeon and advised her to go straight to an emergency room to meet with him.

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Anglin received surgery that same day but continued to experience difficulties

through the time of trial. Claiming Smith violated the standard of care by not properly

assessing her after the second injection or investigating further after their post-

injection phone conversation, Anglin sued Smith and her employer, GAS.

The sole focus of this appeal is the trial testimony of Robert Gadlage, a

physician who employed Anglin at the time of the injections. In particular, the appeal

concerns the trial judge’s limitation of Gadlage’s testimony based on the plaintiffs’

responses to discovery. Before trial, the defendants served the plaintiffs with several

interrogatories, including a general request for names and addresses of all witnesses.

Gadlage was identified in response to that interrogatory. The defendants also posed

a rather inartfully worded interrogatory:

Please indicate whether any doctor, nurse or other individual, with or
without medical training, has ever expressed to you in your presence, or
to your knowledge has ever expressed to or in the presence of some
other person, any opinion that these Defendants were negligent, acted
inappropriately or otherwise caused or was at fault, or that you contend
could be construed in any way to support the allegations of your
Complaint. Please indicate in reasonable detail when and where such
statement was made, what was said and who was present.

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The plaintiffs responded to this by referring to their response to the more general

interrogatory seeking the identity of all witnesses. A document request included in

the same set of defense discovery requests sought production of any documents

“referred to in your answers to interrogatories.” The plaintiffs responded that they had

“none at this time,” while reserving their “right” to supplement their response.

On August 15, 2012, sometime after the plaintiffs responded to these discovery

requests, Gadlage executed an affidavit notarized by the plaintiffs’ counsel.4 In the

affidavit, Gadlage recounted a phone conversation that he had with Smith, which he

said took place between the date of Anglin’s second injection and the date of her back

surgery, most likely on May 14, 2010. In that conversation, according to Gadlage’s

affidavit, Smith indicated Anglin was experiencing “unrelenting pain and inability to

walk” as a result of the procedure performed by Smith. A year later, Gadlage was

listed as a possible trial witness for the plaintiffs in the pre-trial order. The defendants

did not take Gadlage’s deposition.

4
It is not clear from the record precisely when the plaintiffs provided their
discovery response, but the parties’ discussion of the matter at trial presumes that it
was before Gadlage provided his affidavit. The plaintiffs’ initial brief in this case says
the defense requests and plaintiffs’ responses were served “in the summer of 2012.”

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 The plaintiffs called Gadlage to testify at the 2015 trial. The plaintiffs’ counsel

asked Gadlage about the phone call Gadlage said he received from Smith. Gadlage

testified that the two discussed Anglin experiencing side effects from the epidural

procedure. Asked what those side effects were, Gadlage testified, “it would more than

likely have been pain.” He said he could not remember exactly what the other side

effects discussed were, adding, “[i]t might have been weakness or something else.”

When Gadlage said that he could not recall Smith mentioning an inability to walk or

urinary incontinence, plaintiffs’ counsel said he would show Gadlage an affidavit that

Gadlage had executed for plaintiffs’ counsel previously.

Defense counsel asked to see a copy of the affidavit. When plaintiffs’ counsel

confirmed that the defense had not been provided a copy previously, defense counsel

called for a bench conference. The plaintiffs’ counsel read the pertinent part of the

affidavit into the record. Defense counsel objected to the use of the affidavit on the

ground that it had not been produced or even identified in discovery. He also

complained that plaintiffs’ counsel had led him to believe that Gadlage would serve

as a sort of character witness for Anglin and instead was seeking the doctor’s

testimony on matters related to negligence. The plaintiffs’ counsel replied that the

information he had provided about Gadlage had been “accurate,” albeit “not

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complete,” and argued that the affidavit was work product that he did not have a duty

to disclose.

The trial court ruled that the affidavit could not come into evidence or be used

to refresh Gadlage’s recollection, because the plaintiffs should have disclosed the

existence of the affidavit and given the court an opportunity to evaluate their work

product argument. The trial court said the plaintiffs should have supplemented their

discovery responses under OCGA § 9-11-26 (e) (2) (B), which requires

supplementation when a response “is no longer true and the circumstances are such

that a failure to amend the response is, in substance, a knowing concealment.” The

trial court added that its ruling did not prevent plaintiffs’ counsel, while in

questioning Gadlage, from referring to the contents of any prior conversation counsel

might have had with Gadlage.

When Gadlage retook the stand, he testified that “the thing that I remember

specifically [about his conversation with Smith] is that it was about pain and, you

know, other things that went on, inability to walk, other things like – it probably

was.” But when plaintiffs’ counsel asked Gadlage whether he recalled telling counsel

that Anglin’s inability to walk came up in his conversation with Smith, Gadlage

replied, “I can’t look you in the eye and say I remember saying anything about that.”

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Asked again whether he recalled telling plaintiffs’ counsel that Smith had told him

Anglin was unable to walk, Gadlage replied, “I can’t give a definite answer to that.”

After the jury returned a defense verdict, the plaintiffs appealed on the sole basis that

the trial court had erred in handling the issue of Gadlage’s affidavit.

2. Plaintiffs’ Duty to Disclose the Gadlage Affidavit.

OCGA § 9-11-26 (e) (2) (B) provides, in relevant part that

A party who has responded to a request for discovery with a response
that was complete when made is under no duty to supplement his
response to include information thereafter acquired, except as follows
. . . He knows that the response, though correct when made, is no longer
true and the circumstances are such that a failure to amend the response
is, in substance, a knowing concealment.

As our Supreme Court has emphasized,

[a] trial court has broad discretion to control discovery, including the
imposition of sanctions, and this Court will not reverse a trial court’s
decision on discovery matters absent a clear abuse of discretion. That is,
because unlike the appellate courts, the trial court directly supervised the
ebb and flow of the discovery and trial process in the case and had the
opportunity to observe and assess the conduct, demeanor, and credibility
of the parties and their counsel throughout the proceedings.

Elliott, 301 Ga. at 597-98 (2) (b) (citations and punctuation omitted).

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 Applying this highly deferential standard, we find no abuse of discretion in the

trial court’s determination that the existence of Gadlage’s affidavit should have been

disclosed to the defense even though the affidavit was given after the plaintiffs’ initial

responses to the defendants’ interrogatories. Although the wording of the defendants’

interrogatory triggering this duty was by no means a model of clarity, the

interrogatory called upon the plaintiffs to identify

any doctor . . . [who] has ever expressed . . . any opinion that these
Defendants were negligent, acted inappropriately, or otherwise caused
or was at fault, or that you contend could be construed in any way to
support the allegations of your Complaint. Please indicate in reasonable
detail when and where such statement was made, what was said, and
who was present.

Although the statements in Gadlage’s affidavit do not provide an opinion as to

whether Smith and GAS were negligent in their care of Anglin, the plaintiffs’ counsel

clearly intended to use Gadlage’s affidavit at trial to support the allegation that Smith

was aware of the pain and other difficulties Anglin was experiencing two days

following the second injection. This was among the key allegations in the case, as the

plaintiffs argued that Smith’s failure to investigate and properly assess Anglin’s

condition, though Smith was aware that she was experiencing difficulties, breached

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the applicable standard of medical care. In light of these factors, we find no abuse of

the trial court’s discretion in determining that the plaintiffs were under a duty to

supplement their interrogatory responses and disclose to the defense that Dr. Gadlage

had provided an affidavit.5

3. Remedies for Failure to Disclose the Affidavit’s Existence.

As our Supreme Court discussed in Elliott,

[w]hen a party receives a substantive answer to a discovery request, they
are entitled to believe that answer, and they are not required to file a
motion to compel or seek clarification of that substantive response in
order to obtain sanctions should they later learn that the answer provided
was false or intentionally misleading. This is because an intentionally
false response to a written discovery request, particularly when it
concerns a pivotal issue in the litigation, equates to a total failure to
respond, triggering OCGA § 9-11-37 (d) sanctions.

Elliott, 301 Ga. at 595-96 (2) (a) (citations omitted).

5
We do not reach the question of whether the Gadlage affidavit constituted
attorney work product or whether its contents could have been withheld from the
defense on that basis. In this case, because the Gadlage affidavit was responsive to
the defense’s interrogatories, the plaintiffs were under a duty to disclose the existence
of the affidavit and could have lodged any claims of privilege when they
supplemented their interrogatories. Their failure to do so, as the trial court rightly
determined, barred the plaintiffs from raising the work-product claim when they
attempted to utilize the affidavit during Dr. Gadlage’s trial testimony.

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 Here, the record supports the trial court’s determination that the plaintiffs’

failure to disclose the Gadlage affidavit to the defense was deliberate and that, in the

absence of supplemental disclosure, their response to the interrogatories was false and

misleading. Plaintiffs’ counsel indicated to the trial court that he “did not feel an

obligation to disclose to [defense counsel] my work-product information” and went

so far as to note that he was “entitled under the rules to knowingly conceal my work

product.” These statements by counsel, at a minimum, suggest he was aware the

Gadlage affidavit was responsive to the defendants’ interrogatories and that, absent

work-product privilege, the affidavit was subject to production.

As the Supreme Court further noted in Elliott,

An interrogatory answer that falsely denies the existence of discoverable
information is not exactly equivalent to no response. It is worse than no
response. When there is no response to an interrogatory or the response
is devoid of content, the party serving the interrogatory at least knows
that it has not received an answer. It can move the court for an order to
compel a response . . . If the response is false, however, the party
serving the interrogatory may never learn that it has not really received
the answer to the interrogatory.

Elliott, 301 Ga. at 596 (2) (a) (quoting Metro Atlanta Rapid Transit Auth. v. Doe, 292

Ga. App. 532, 536 (664 SE2d 893) (2008)) (emphasis in original). On the basis of this

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reasoning, the Supreme Court ruled that “where a party has provided false or

intentionally misleading responses to written discovery . . . the aggrieved party may

seek sanctions for the same, as allowing such hidden evidence to be admitted at trial

simply because it has some probative value rewards and encourages deceptive

behavior.” Elliott, 301 Ga. at 596-97 (2) (a). The Supreme Court highlighted that

“both our case law and statutory authority give the aggrieved party in such a

circumstance more options for relief than a mere continuance; instead, a trial court

clearly has the discretion to impose Rule 37 (d) sanctions if it finds that the offending

party has provided discovery responses which were false or deliberately misleading.”

Id. at 597 (2) (a). Such sanctions include the exclusion of the evidence not disclosed

to the other party. Id. at 599 (2) (b). See also OCGA § 9-11-37 (b) (2) (B)

(authorizing the trial court to prohibit the offending party “from introducing

designated matters in evidence”).

Because the record supported the trial court’s determination that the plaintiffs

had failed to supplement their responses to the defense’s interrogatories and because

such failure made those responses false or misleading, the trial court had discretion

to impose a range of sanctions on the plaintiffs, including exclusion of the affidavit.

We find no abuse of the trial court’s discretion in imposing this sanction, particularly

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in light of its clear statement to the plaintiffs’ counsel that although he could not

utilize the affidavit to refresh Dr. Gadlage’s recollection, nothing would forbid him

of inquiring of Dr. Gadlage regarding the contents of their conversation that led the

doctor to provide his affidavit.

Judgment affirmed. Dillard, C. J., and Reese, J., concur.

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