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Elliott v. Resurgens PC

The medical malpractice plaintiff was entitled to a new trial following a verdict in favor of the defendants, because the trial court abused its discretion in excluding a witness's probative and material testimony as a remedy for the plaintiff's alleged failure to properly comply with discovery.

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Sean Elliott appeals from a jury verdict in favor of Resurgens, P.C., d/b/a Resurgens Orthopaedics Resurgens and Tapan K. Daftari, M.D. defendants, in his medical-malpractice action against them, arising from allegedly negligent treatment that he received after undergoing spinal surgery during which he became paralyzed from the waist down. In three separate enumerations of error, Elliott argues that the trial court erred in excluding the testimony of a witness who was not specifically named in the pre-trial order PTO or disclosed during discovery. We agree that the trial court erred, and for the reasons set forth infra, reverse.

Construed in favor of the jury’s verdict,1 the evidence shows that, in 2004, Elliott began seeing Daftari regularly to receive medical treatment for neck and back pain. In late 2009, Elliott visited Daftari because he was experiencing increased pain in his neck and lower back. At that time, Daftari diagnosed Elliott with degenerative disc disease and informed him that he needed surgery on his posterior cervical spine. Thereafter, on December 1, 2009, Daftari performed the surgery, which went as planned with no complications, and Elliott was discharged three days later. At the time of his discharge, Elliott did not have any neurological deficits.

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