ORDER

*1 This case arises out of a traffic collision. On October 22, 2015, a tractor trailer driven by Defendant Daniel Egozcue collided with a vehicle driven by Plaintiff Dana Scott. Scott alleges that as a result of the collision, she suffered orthopedic injuries to her neck and back that required surgery. She has incurred medical bills exceeding $420,000.

I. Background

On October 10, 2017, Scott filed suit in the State Court of Clayton County. The parties engaged in two years of discovery, including taking the depositions of Scott, Egozcue, and Scott's treating provider Dr. Erik Bendiks, among others.

During her deposition, Scott testified that she had not previously injured her neck. However, Defendants later discovered that she had concealed prior treatment on her neck by five medical providers following an earlier accident; this treatment continued until just a few weeks before the collision that is the subject of this litigation. Defendants also uncovered evidence showing that she had misrepresented numerous elements of her health information relating to her prior injuries and treatment and failed to amend her interrogatory responses to correct her misrepresentations.

In light of her alleged misconduct, Defendants moved for sanctions in state court and sought the dismissal of Scott's complaint. In a February 7, 2020 order, the state court judge declined to dismiss the complaint but precluded Scott from offering evidence of or seeking recovery for any treatment other than that received immediately after the collision involving Egozcue. The state court judge also found it appropriate that she be barred from offering any evidence to explain or rebut the treatment, records, or testimony of any of the five providers that she failed to disclose during discovery.

Shortly thereafter, Scott voluntarily dismissed her suit in state court.

On February 28, 2020, twenty-one days after Scott voluntarily dismissed her original action, she filed suit in the Superior Court of Clayton County seeking damages for the same underlying conduct.

On April 10, Defendants removed the superior court suit to this Court. They now move [4] to limit discovery to Scott's deposition and seek [5] to estop her from presenting evidence of or seeking recovery for treatment other than that which she received in the immediate aftermath of her injury, as well as to prevent her from explaining or rebutting the testimony of the five providers she concealed from Defendants. In essence, Defendants are moving to re-impose the sanctions set forth in the state court judge's February 7 order.

II. Discussion

Defendants proceed in two parts.

First, in their motion [4] to limit discovery, Defendants argue that limiting discovery to Scott's deposition is appropriate under the circumstances because, by the time that the state court judge issued his order granting the motion for sanctions, the parties had already completed two years of extensive discovery and submitted a consolidated pretrial order. They argue that the Court's exercise of discretion to limit discovery is appropriate in the interest of fairness and necessary in order to “avoid extensive and redundant trouble and expense.” [4] at 9.

*2 Second, in their motion [5] to estop Scott from offering evidence of her treatment or to rebut the testimony of her providers, Defendants contend that the doctrine of issue preclusion bars any discussion of the length or duration of her treatment and injuries. They argue that the state court's order granting sanctions “squarely decided” this narrow issue and that it cannot now be relitigated. [5] at 14.

A. Defendants' Motion in Limine to Estop Scott from Presenting Evidence

In response to Defendants' motion in limine to estop her from presenting evidence barred by the state court sanctions, Scott argues that she has a statutory right under O.C.G.A. § 9-11-41(a) to avoid the state court's imposition of sanctions by voluntarily dismissing her original suit, regardless of whether the voluntary dismissal was in bad faith. See [13] at 2–3 (quoting C & S Indus. Supply Co. v. Proctor & Gamble Paper Prods. Co., 404 S.E.2d 346, 347 (Ga. Ct. App. 1991) (“There is no ‘bad faith’ exception to a plaintiff's right to voluntarily dismiss [her] action.”)).

Scott is correct. Under Georgia law, a plaintiff may voluntarily dismiss her case “by filing a written notice of dismissal at any time before the first witness is sworn,” regardless of the purpose for doing so. See O.C.G.A. § 9-11-41(a)(1)(A).

However, Defendants do not belabor this point. See [19] at 5 (stating that they “take no issue with plaintiff's ability to re-file”). Instead, they contend that even if Scott's voluntary dismissal is valid, the state court judge's order granting sanctions was dispositive of the issue determining the duration of her injury and medical treatment. Accordingly, they urge that issue preclusion bars her from now relitigating that aspect of her claims.

The Court disagrees. An order imposing sanctions in an earlier suit is not given preclusive effect if the plaintiff voluntarily dismisses and refiles. This is because “[a] suit dismissed without prejudice pursuant to OCGA § 9-11-41 leaves the situation the same as if the suit had never been brought in the first place.” Smith v. Mem'l Med. Ctr., Inc., 430 S.E.2d 57, 59 (Ga. Ct. App. 1993) (quoting Matthews v. Riviera Equip., 264 S.E.2d 318, 319 (Ga. Ct. App. 1980)); see also Gallagher v. Fiderion Grp., LLC, 685 S.E.2d 387, 389 (Ga. Ct. App. 2009) (“Because an unqualified dismissal without prejudice completely extinguishes the action as if it had never been filed, prior orders entered in the case are superseded.”); Lakes v. Marriott Corp., 448 S.E.2d 203, 206 (Ga. Ct. App. 1994) (finding that a dismissal “deprive[s] the trial court of jurisdiction over the case and [leaves] the parties in the same position as if the suit had never been filed”); Corrosion Control, Inc. v. William Armstrong Smith Co., 277 S.E.2d 287, 288 (Ga. Ct. App. 1981) (finding that “it was incumbent upon the appellant to produce evidence as to the appellee's liability for breach of the contract” because “when [the] appellant ... voluntarily dismissed its [original] suit, the underlying viability of [the original suit] for anything other than its precedential value was lost”).

Accordingly, the doctrine of issue preclusion is inapplicable. And because Scott's voluntary dismissal is valid, Defendants' motion [5] in limine will be denied.

B. Defendants' Motion to Limit Discovery

Separately, Defendants seek to limit discovery to a retaking of Scott's deposition because the parties submitted a pretrial order in the state court suit certifying that discovery was complete. They argue that limiting discovery in this manner is necessary to reveal Scott's misrepresentations while avoiding the expense of additional discovery, especially given the state court judge's finding that her misrepresentations were intentional.

*3 In response, Scott urges that the legislative intent of the voluntary dismissal statute weighs in favor of permitting a robust discovery period. She contends that the voluntary dismissal statute in Georgia is designed as a remedial mechanism to allow a plaintiff the opportunity to correct procedural errors in the earlier suit, regardless of any additional expense or burden on the defendant and irrespective of any alleged wrongdoing by the plaintiff. See Lakes, 471 S.E.2d at 915 (finding that § 9-11-41(a) was crafted to permit dismissal “despite inconvenience and irritation to the defendant”). Moreover, she notes that Federal Rule of Civil Procedure 26(b)(1) allows for the discovery of “any matter, not privileged, that is relevant to the claim or defense of any party,” and urges the Court to allow unfettered discovery as a means of ensuring that the parties are able to obtain the requisite facts for trial.

In Defendants' reply, they offer no statutory or common law support—nor is the Court aware of any—to support their contention that this Court should limit discovery to a retaking of Scott's deposition. And in light of the legislative intent behind Rule 26 and § 9-11-41(a), the Court declines to exercise its discretion in order to limit discovery in this manner. Accordingly, Defendants' motion [5] is due to be denied.

III. Conclusion

For the foregoing reasons, Defendants' motion [4] to limit discovery and motion [5] in limine to estop Scott from presenting evidence are denied.

IT IS SO ORDERED this 13th day of July, 2020.

Scott v. Driving Your Way LLC

Citation: 2020 WL 13588247 (N.D. Ga. 2020)

Summary: ESI was used in the form of medical records and other documents to support the parties' arguments. The court did not make any specific rulings regarding the use of ESI, but it is important to note that ESI can be used to uncover evidence that may be relevant to a case.

Court: United States District Court, N.D. Georgia, Atlanta Division

Date decided: July 13, 2020

Judge: Batten Sr., Timothy C.

DANA SCOTT, Plaintiff, v. DRIVING YOUR WAY LLC, ILLINOIS NATIONAL INSURANCE COMPANY, and DANIEL EGOZCUE, Defendants CIVIL ACTION FILE NO. 1:20-cv-1566-TCB United States District Court, N.D. Georgia, Atlanta Division Signed July 13, 2020 Counsel Eric Jonathan David Rogers, Michael L. Goldberg, Fried Goldberg LLC, Atlanta, GA, for Plaintiff. Janeen Elizabeth Smith, Jennifer C. Adair, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendants. Batten Sr., Timothy C., United States District Judge ORDER *1 This case arises out of a traffic collision. On October 22, 2015, a tractor trailer driven by Defendant Daniel Egozcue collided with a vehicle driven by Plaintiff Dana Scott. Scott alleges that as a result of the collision, she suffered orthopedic injuries to her neck and back that required surgery. She has incurred medical bills exceeding $420,000. I. Background On October 10, 2017, Scott filed suit in the State Court of Clayton County. The parties engaged in two years of discovery, including taking the depositions of Scott, Egozcue, and Scott's treating provider Dr. Erik Bendiks, among others. During her deposition, Scott testified that she had not previously injured her neck. However, Defendants later discovered that she had concealed prior treatment on her neck by five medical providers following an earlier accident; this treatment continued until just a few weeks before the collision that is the subject of this litigation. Defendants also uncovered evidence showing that she had misrepresented numerous elements of her health information relating to her prior injuries and treatment and failed to amend her interrogatory responses to correct her misrepresentations. In light of her alleged misconduct, Defendants moved for sanctions in state court and sought the dismissal of Scott's complaint. In a February 7, 2020 order, the state court judge declined to dismiss the complaint but precluded Scott from offering evidence of or seeking recovery for any treatment other than that received immediately after the collision involving Egozcue. The state court judge also found it appropriate that she be barred from offering any evidence to explain or rebut the treatment, records, or testimony of any of the five providers that she failed to disclose during discovery. Shortly thereafter, Scott voluntarily dismissed her suit in state court. On February 28, 2020, twenty-one days after Scott voluntarily dismissed her original action, she filed suit in the Superior Court of Clayton County seeking damages for the same underlying conduct. On April 10, Defendants removed the superior court suit to this Court. They now move [4] to limit discovery to Scott's deposition and seek [5] to estop her from presenting evidence of or seeking recovery for treatment other than that which she received in the immediate aftermath of her injury, as well as to prevent her from explaining or rebutting the testimony of the five providers she concealed from Defendants. In essence, Defendants are moving to re-impose the sanctions set forth in the state court judge's February 7 order. II. Discussion Defendants proceed in two parts. First, in their motion [4] to limit discovery, Defendants argue that limiting discovery to Scott's deposition is appropriate under the circumstances because, by the time that the state court judge issued his order granting the motion for sanctions, the parties had already completed two years of extensive discovery and submitted a consolidated pretrial order. They argue that the Court's exercise of discretion to limit discovery is appropriate in the interest of fairness and necessary in order to “avoid extensive and redundant trouble and expense.” [4] at 9. *2 Second, in their motion [5] to estop Scott from offering evidence of her treatment or to rebut the testimony of her providers, Defendants contend that the doctrine of issue preclusion bars any discussion of the length or duration of her treatment and injuries. They argue that the state court's order granting sanctions “squarely decided” this narrow issue and that it cannot now be relitigated. [5] at 14. A. Defendants' Motion in Limine to Estop Scott from Presenting Evidence In response to Defendants' motion in limine to estop her from presenting evidence barred by the state court sanctions, Scott argues that she has a statutory right under O.C.G.A. § 9-11-41(a) to avoid the state court's imposition of sanctions by voluntarily dismissing her original suit, regardless of whether the voluntary dismissal was in bad faith. See [13] at 2–3 (quoting C & S Indus. Supply Co. v. Proctor & Gamble Paper Prods. Co., 404 S.E.2d 346, 347 (Ga. Ct. App. 1991) (“There is no ‘bad faith’ exception to a plaintiff's right to voluntarily dismiss [her] action.”)). Scott is correct. Under Georgia law, a plaintiff may voluntarily dismiss her case “by filing a written notice of dismissal at any time before the first witness is sworn,” regardless of the purpose for doing so. See O.C.G.A. § 9-11-41(a)(1)(A). However, Defendants do not belabor this point. See [19] at 5 (stating that they “take no issue with plaintiff's ability to re-file”). Instead, they contend that even if Scott's voluntary dismissal is valid, the state court judge's order granting sanctions was dispositive of the issue determining the duration of her injury and medical treatment. Accordingly, they urge that issue preclusion bars her from now relitigating that aspect of her claims. The Court disagrees. An order imposing sanctions in an earlier suit is not given preclusive effect if the plaintiff voluntarily dismisses and refiles. This is because “[a] suit dismissed without prejudice pursuant to OCGA § 9-11-41 leaves the situation the same as if the suit had never been brought in the first place.” Smith v. Mem'l Med. Ctr., Inc., 430 S.E.2d 57, 59 (Ga. Ct. App. 1993) (quoting Matthews v. Riviera Equip., 264 S.E.2d 318, 319 (Ga. Ct. App. 1980)); see also Gallagher v. Fiderion Grp., LLC, 685 S.E.2d 387, 389 (Ga. Ct. App. 2009) (“Because an unqualified dismissal without prejudice completely extinguishes the action as if it had never been filed, prior orders entered in the case are superseded.”); Lakes v. Marriott Corp., 448 S.E.2d 203, 206 (Ga. Ct. App. 1994) (finding that a dismissal “deprive[s] the trial court of jurisdiction over the case and [leaves] the parties in the same position as if the suit had never been filed”); Corrosion Control, Inc. v. William Armstrong Smith Co., 277 S.E.2d 287, 288 (Ga. Ct. App. 1981) (finding that “it was incumbent upon the appellant to produce evidence as to the appellee's liability for breach of the contract” because “when [the] appellant ... voluntarily dismissed its [original] suit, the underlying viability of [the original suit] for anything other than its precedential value was lost”). Accordingly, the doctrine of issue preclusion is inapplicable. And because Scott's voluntary dismissal is valid, Defendants' motion [5] in limine will be denied. B. Defendants' Motion to Limit Discovery Separately, Defendants seek to limit discovery to a retaking of Scott's deposition because the parties submitted a pretrial order in the state court suit certifying that discovery was complete. They argue that limiting discovery in this manner is necessary to reveal Scott's misrepresentations while avoiding the expense of additional discovery, especially given the state court judge's finding that her misrepresentations were intentional. *3 In response, Scott urges that the legislative intent of the voluntary dismissal statute weighs in favor of permitting a robust discovery period. She contends that the voluntary dismissal statute in Georgia is designed as a remedial mechanism to allow a plaintiff the opportunity to correct procedural errors in the earlier suit, regardless of any additional expense or burden on the defendant and irrespective of any alleged wrongdoing by the plaintiff. See Lakes, 471 S.E.2d at 915 (finding that § 9-11-41(a) was crafted to permit dismissal “despite inconvenience and irritation to the defendant”). Moreover, she notes that Federal Rule of Civil Procedure 26(b)(1) allows for the discovery of “any matter, not privileged, that is relevant to the claim or defense of any party,” and urges the Court to allow unfettered discovery as a means of ensuring that the parties are able to obtain the requisite facts for trial. In Defendants' reply, they offer no statutory or common law support—nor is the Court aware of any—to support their contention that this Court should limit discovery to a retaking of Scott's deposition. And in light of the legislative intent behind Rule 26 and § 9-11-41(a), the Court declines to exercise its discretion in order to limit discovery in this manner. Accordingly, Defendants' motion [5] is due to be denied. III. Conclusion For the foregoing reasons, Defendants' motion [4] to limit discovery and motion [5] in limine to estop Scott from presenting evidence are denied. IT IS SO ORDERED this 13th day of July, 2020.