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Davis v. Osinuga

The trial court did not abuse its discretion in denying the plaintiffs' application for a continuance based on the absence of their expert witness, as they could not represent to the trial court that the witness would be available to testify at the next term of court.

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Diane Eldredge Davis and Jesse Randolph Eldredge collectively, “the Eldredges”, as the survivors of their father, Jesse Belton Eldredge, brought this medical malpractice wrongful death action in the State Court of DeKalb County against Oladayo Osinuga, M.D., and against his employer, East Point Primary Care Center, P.C. collectively “Dr. Osinuga”. When the trial court called the case for trial, the Eldredges applied for a continuance on the basis that, as of the preceding business day, they were unable to present the testimony of their only expert witness. After a hearing, the trial court denied the Eldredges’ application for a continuance. Because the Eldredges were unable to move forward with their case without expert testimony, the trial court also dismissed the Eldredges’ action for want of prosecution. The Eldredges appeal, contending, inter alia, that the trial court abused its discretion in denying their application for a continuance.

A motion for continuance of a trial is properly addressed to the sound legal discretion of a trial judge,1 who is in control of the management of the case in court. The exercise of that discretion will not be disturbed by the appellate courts unless the discretion is manifestly abused.

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