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Lee v. Smith

Court of Appeals of Georgia, Fifth Division

June 27, 2018

LEE
v.
SMITH.

          MCFADDEN, P. J., RAY and RICKMAN, JJ.

          RICKMAN, JUDGE.

         After a motor vehicle accident, David A. Smith II filed a complaint against Donggue Lee for negligence, seeking damages. A jury trial was held and the jury returned a verdict in favor of Smith in the amount of $2, 000, 000. Thereafter, the trial court entered judgment on the verdict plus interest and costs. On appeal, Lee contends that the trial court erred by excluding his expert witness, denying his motion for directed verdict regarding Smith's claim for lost future earnings, and denying his request for a special verdict form. For the following reasons, we affirm.

         In 2014, Smith filed a complaint against Lee, asserting that Lee operated his vehicle negligently, which caused him serious injuries, and seeking damages for pain and suffering and medical expenses.

         The trial court entered four scheduling orders in this case. The first scheduling order was entered in January 2016 and gave the parties six months to complete discovery. The second scheduling order extended the discovery completion date to December 31, 2016. A third scheduling order extended discovery three more months and set trial to begin on May 1, 2017. On March 30, 2017, Smith identified an expert sports agent who would testify "regarding the impact that [Smith's] injuries will have upon [Smith's] future in various aspects of his personal life and athletic career." On April 5, 2017, the trial court entered its fourth and final scheduling order, which set the trial date for August 7, 2017. This final scheduling order required that all trial witnesses, including experts, be identified on or before May 12, 2017.

         On May 12, 2017, Smith supplemented his discovery responses to substitute his agent as the expert he intended to call at trial to testify regarding the impact of his injuries on his athletic career. Lee also amended his previous interrogatory response that he was not asserting a claim for lost earnings with:

In addition to past, current and future lost earnings, [Smith] has further suffered special and/or general damages in the form of, inter alia, diminished earning capacity, diminished ability to work, labor or earn wages. Since the date of the accident giving rise to this lawsuit, [Smith's] occupation changed upon graduation from Auburn University in May 2016 from collegiate high jumper to professional high jumper. As a result of the injuries suffered during the collision and the reasonable and necessary medical treatment resulting therefrom (including, inter alia, surgery in January 2017), [Smith] has lost earnings (including, inter alia, contract, sponsorship, incentive, appearance and various other forms of earnings associated with his profession) in an amount to be more fully shown at trial.

         Lee deposed Smith's agent on June 20, 2017. Eight days later, Lee sent an email to Smith identifying an expert it planned to call at trial to rebut Smith's agent's anticipated testimony regarding Smith's alleged future damages claims.

         A pre-trial hearing was held in July 2017. At that hearing, Smith argued that Lee's expert should be excluded because he was not named by the deadline set in the scheduling order. Lee responded that he did not learn about Smith's lost earnings claim until the date experts were to be identified under the scheduling order; Lee also provided information about his expert's anticipated testimony. The trial court agreed with Smith, and excluded the witness because he was not properly identified within the constraints of the scheduling order.

         At trial, Lee admitted fault for the accident, thus the sole issue for the jury was the amount of damages. Smith's agent testified that professional high jumpers make money through sponsorship contracts, appearance fees, and prize money for competing in different track meets. He further testified that the length of a professional career for a high jumper was approximately ten years and that, if not for the surgery he had to undergo as a result of the accident, Smith would have earned "conservatively about a million dollars" over the course of his career. Additionally, the agent testified that, if not for the surgery, he would have been able to negotiate a contract for Smith in 2017 that he was "reasonably certain" would have included incentive bonuses if Smith was able to reach certain jump heights. When discussing incentive bonuses, the agent explained that, hypothetically, if Smith had an incentive bonus and was to break a world record he might earn $100, 000 solely due to the jump height.

         Smith's agent opined that while it was "reasonably certain" that Smith would make $1, 000, 000 during his career, he could have made $2.5 million under the potential 2017 contract. Additionally, Smith's agent testified that in May 2016 Smith was ranked fifth in the world. In Smith's agent's opinion, a high jumper ranked in the top ten in the world would make approximately $4, 000, 000 over his career and a top five high jumper would make around $6, 000, 000.

         The jury returned a verdict in favor of Smith in the amount of $2, 000, 000. The trial court entered judgment on the verdict; Lee appeals from that judgment and the trial court's pre-trial ruling excluding his expert witness.

         On appeal, Lee contends that the trial court erred by excluding his expert witness, denying his motion for directed verdict regarding Smith's claim for future lost ...


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