L-R Newly appointed Georgia Supreme Court Justices Michael Boggs and Britt Grant listen to Paul Weathington give arguments at the Supreme Court of Georgia on Monday January 9th 2017. (John Disney/ ALM)
In its first oral arguments together Monday, the newly expanded Georgia Supreme Court heard impassioned pleas from lawyers on both sides of a medical-malpractice case in which one side is accusing the other of calling a surprise witness to create a “Perry Mason” moment.
“We’re here today because of the decision of the plaintiff to deliberately and intentionally withhold until the moment of ambush at trial—as in the old Perry Mason movies with Paul Drake or Della Street, if you remember them walking down the aisle with important alibi information,” said medical-malpractice defense attorney Paul Weathington of Weathington McGrew. “I’m sitting there with my associate when Savannah Sullivan’s name was called.”
Weathington has had win streaks that lasted for years and “Perry Mason” moments of his own. But Monday he talked about the one his opponent, plaintiffs attorney Eric Hertz, didn’t quite achieve.
“I’m looking at the pretrial order to see if Sullivan’s name was disclosed there. Her name is absent,” he said. “It was not disclosed in emails. It was not disclosed in collegial agreements at trial to tell us who you’re calling as a witness the next day so that we may prepare.”
Instead, Weathington accused Hertz of “secreting the witness to use trial by ambush.”
When it was his turn, Hertz argued that maybe Weathington just wasn’t prepared. “There was no deceit,” Hertz said. “A surprise is a bad thing at trial, but simply because there is a surprise doesn’t mean the person bringing the witness did something wrong.”
At the trial in 2015, Fulton County State Court Judge Jane Morrison agreed with Weathington and refused to allow Sullivan, a nurse, to testify. The jury also came down on the side of the doctor represented by Weathington. The Georgia Court of Appeals reversed the defense verdict and ordered a new trial, ruling that excluding the witness was too strong a sanction. The doctor appealed.
Hertz’s client, Sean Elliott, is suing back surgeon Dr. Tapan Daftari and Resurgens Orthopaedics, alleging that negligent treatment of a post-operative infection caused permanent paralysis. The heat of the trial came from conflicts over when the doctor learned Elliot was starting to lose movement in his legs. About three days in, Elliott’s lawyers attempted to call Sullivan, who would have testified that the doctor was with her at the patient’s bedside at 9 a.m. on the 2009 day in question, hours earlier than the doctor testified he learned of the paralysis.
Sullivan was not on the witness list in the consolidated pretrial order—a roadmap agreed to in advance by both parties and signed by the judge. Weathington said he learned later that Hertz knew about Sullivan for months. Hertz argued that Weathington should not have been surprised because the pretrial order had a “catch-all” phrase that included everyone in the medical record. Weathington said that record was 2,000 pages with only one mention of Sullivan, and not one that would suggest she was with the doctor at the patient’s bedside.
Toward the end of the arguments, new Chief Justice P. Harris Hines asked Hertz why he didn’t amend the pretrial order when he discovered his new witness. “It’s done every day,” Hines said.
“In retrospect, I wish I would have,” Hertz said.
“Or you realized you had a good one in the bag to use at trial?” said Justice David Nahmias.
“No. I mean I’ve tried over a hundred jury trials and get excited when the other side doesn’t know about a witness,” Hertz said. “But there was no intent here to try and fool them.”
The case is Resurgens v. Elliott, No. S16G1214.