Hunter v. Nissan Motor Co. of Japan , 229 Ga. App. 729 ( 1997 )

McMurray, Presiding Judge.

In January 1989, Margaret Thrasher Hunter was driving a 1982 Nissan Sentra automobile (“Sentra”) with her two sons as rear-seat passengers. While she was waiting to make a turn, her Sentra was struck in the rear by a 1980 Chevrolet Monte Carlo automobile operated by an allegedly intoxicated minor under the legal drinking age. The rear of Hunter’s Sentra collapsed, crushing the car’s rear passenger area. One child died, the other was injured.

Hunter filed a products liability action against Nissan Motor Company, Ltd. of Japan and Nissan Motor Corporation in U.S.A (“the Nissan defendants”), individually and in her representative capacities for her surviving child and her deceased child’s estate, alleging (in pertinent part) that the Nissan defendants defectively designed the Sentra to withstand rear-end collisions.¹ At the April 1995 trial, however, the trial court directed the jury to disregard key expert-testimony supporting this claim. Specifically, the trial court excluded Automotive Design Engineer Billy S. Peterson’s testimony that $3 worth of steel during the manufacturing process or a $20 impact-absorbing bumper would have cured the alleged defect (the Sentra’s unreinforced impact-absorbing frame stubs) which caused the Hunters’ catastrophic injuries.² The trial court imposed this sanction because Hunter did not supplement her interrogatory responses or Peterson’s deposition so as to update the Nissan defendants regarding Peterson’s suggested safer design alternatives, as was allegedly required by OCGA § 9-11-26 (e).

The jury found in favor of the Nissan defendants. This appeal followed. Held:

1. Hunter contends the trial court erred in striking Billy S. Peterson’s expert testimony regarding alternative safer designs for the 1982 Sentra automobile. We agree.

Exclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission. White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581 (5) (417 SE2d 383). Such a harsh and unnecessary sanction was flatly rejected, albeit under different circumstances, in Sharpe v. Dept. of Transp., 267 Ga. 267, 270 (2), 271 (476 SE2d 722), where the Supreme Court of Georgia held that a motion to strike is never an appropriate tool for excluding probative evidence during a civil jury trial. The only appropriate remedy for Hunter’s alleged failure to update her discovery responses or her expert witness’ deposition testimony in the case sub judice (if any such update was even required) was postponement of trial or a mistrial.³ White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581 (5), supra. See Jones v. Atkins, 120 Ga. App. 487, 490 (2) (171 SE2d 367). The trial court simply did not have authority or latitude to grant the Nissan defendants’ motion to strike the Hunters’ expert’s “alternative design” testimony. The trial court’s judgment must therefore be reversed for a new trial so that a jury may consider Billy S. Peterson’s expert testimony. Saying otherwise, as does the dissent, not only disregards controlling authority, but also disregards this State’s venerable policy against obliquely coursing appropriate paths in the name of procedural gaming by excluding relevant evidence, which is not inadmissible for some reason of prejudice or illegality. See Ga. Farm &c. Ins. Co. v. Merck, 209 Ga. App. 879, 880 (1) (434 SE2d 585), and cits.

2. Hunter contends the trial court erred in denying her motion to exclude the testimony of Jeff Worth, a testing engineer who conducted a crash test between a Sentra automobile and a Monte Carlo automobile which the Nissan defendants used in their defense. Hunter argues that Worth was not identified during discovery as an expert and that the substance of his testimony was never disclosed. Since these alleged omissions will no longer be an obstacle to Jeff Worth’s testimony upon remand for a new trial, it is unnecessary to address this enumeration of error.

3. Our holding in Division 1 of this opinion renders moot Ms. Hunter’s final enumeration of error regarding the trial court’s exclusion of Billy S. Peterson as a rebuttal witness.

Judgment reversed.

Birdsong, P. J, Ruffin and Eldridge, JJ, concur. Andrews, C. J, Beasley and Smith, JJ, dissent.

1 She also pressed claims against the driver of the Monte Carlo and the drinking establishment which served the underage driver alcoholic beverages before the collision.

2 This alternative design testimony is relevant under the risk-utility test prescribed in Banks v. ICI Americas, 264 Ga. 732, 733 (1) (450 SE2d 671).

3 The issue of whether Hunter was required to update her interrogatory responses or her expert’s deposition testimony is not clear. Any such duty arises in the case sub judice only if Hunter knowingly concealed her expert witness’ substantive testimony. OCGA § 9-11-26 (e) (2) (B). We do not believe that a finding of such a “knowing concealment” is supported under the circumstances appearing in the case sub judice. The Nissan defendants’ attorneys were aware, when the Hunters’ expert gave his deposition, that the expert had not yet seen all of the data relevant for forming an opinion regarding the safety of the 1982 Nissan “Sentra” automobile in question. This is apparent because Hunter’s expert informed defense counsel during his deposition (which was taken almost two years before trial) that he had not yet formed an opinion as to alternative design methods. Under these circumstances, in light of the fact that the Nissan defendants took the Hunters’ expert’s deposition during discovery and before these defendants turned over engineering studies (two videotaped recordings containing 1982 Nissan “Sentra” automobile rear-end crash tests) relevant to evaluating the design defect in question, we cannot say that Ms. Hunter had a duty to supplement her interrogatories or her expert witness’ deposition. If the Nissan defendants wanted further information regarding Billy S. Peterson’s opinion as to safer design alternatives, they could have easily questioned him during a second deposition before trial.