By: Brittany DeDiego

In federal court, expert disclosure is governed by the Federal Rules of Civil Procedure, which requires, absent a stipulation or court order, that expert disclosures be made: (i) at least 90 days before the date set for trial or for the case to be ready for trial; or (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure. FRCP 26. 

Even though the Georgia Civil Practice Act is modeled off the federal version, there is no corresponding expert disclosure requirement stated in the Georgia Rules.  As a result, deadlines for disclosing experts in Georgia cases are less clear.  In fact, Georgia courts frequently impose expert disclosure deadlines via case-management orders.  If your case is likely to be expert-heavy, you should consider asking for clarity from the Court as to when experts must be disclosed.

The Georgia Supreme Court recently issued a decision touching on this issue and specifically addressed the consequences for a party’s failure to timely disclose an expert. Lee v. Smith, 307 Ga. 815 (2020). In the Lee case, the question was whether a trial court can exclude an expert witness from testifying because that expert was identified late, i.e., after the deadline set in a case management order.   Ultimately, the Georgia Supreme Court answered this question in the negative, concluding that a trial court could not exclude an expert witness solely because of late identification. 

However, this decision does not mean that late-disclosed experts will always be permitted to testify.  While the Lee decision seems to disfavor exclusion of witnesses, the Georgia Supreme Court offered several factors that a Court should consider when determining how to handle late-disclosed experts, including: (1) the proffering party’s explanation for the failure to disclose the witness timely; (2) the importance of the testimony; (3) the prejudice to the opposing party if the witness is allowed to testify; (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. The Lee opinion states that consideration of these factors will allow a trial court to properly balance the circumstances surrounding a party’s failure to comply with a pretrial scheduling order. In some cases, presumably, exclusion may be a proper remedy, such as where an expert has been identified as a delay tactic or the proffering party is guilty of laches.  In other instances, a continuance or out-of-time discovery may be more appropriate than imposing a sanction, such as exclusion.

Based on the Supreme Court’s decision in Lee, the best practice remains making every effort to comply with a trial court’s scheduling order.  If you have a strong reason for disclosing an expert after the deadline, the Lee case seems to permit such disclosures, so long as the other party(ies) are able to remedy or address any potential prejudice caused by the late disclosure.  However, the way judges handle late disclosed experts going forward will be highly case-dependent.