Cameron v

State, 256 Ga. 225, 345 S.E.2d 575, 1986 Ga. LEXIS 754 (1986) (decided under former O.C.G.A. § 24-9-67). Physician’s opinion of “rape.” — Allowing any question and answer of a physician who examined the victim of an alleged rape which would involve the physician’s opinion stated in the physician’s report that “this is rape” constituted reversible error. Nichols v. State, 177 Ga. App. 689, 340 S.E.2d 654, 1986 Ga. App. LEXIS 2452 (1986) (decided under former O.C.G.A. § 24-9-67). Ophthalmologist testimony in DUI case inadmissible. — Trial court did not err in not allowing an ophthalmologist to testify as an expert that a DUI defendant had two surgeries in the past, which could have affected the defendant’s performance on walk-and-turn and one-leg-stand tests. The witness had no personal knowledge of the surgery in question or of the medical records referring to the surgeries; moreover, the defendant’s live-in companion was permitted to testify at length regarding the defendant’s medical issues arising from the surgery and its effect on the 726 defendant’s ability to walk normally at the time of the arrest. Aal v. State, 290 Ga. App. 252, 659 S.E.2d 609, 2008 Ga. App. LEXIS 29 (2008) (decided under former O.C.G.A. § 24-9-67). Officer’s testimony on marijuana test results. — Officer’s testimony regarding officer’s training and experience with “ontrack system” urine specimen analysis for the presence of tetrahydrocannabinol was insufficient foundation for the admission of the test results. Hubbard v. State, 207 Ga. App. 703, 429 S.E.2d 123, 1993 Ga. App. LEXIS 322 (1993) (decided under former O.C.G.A. § 24-9-67). Hair analysis results cannot be used to make positive identification of an individual. Hudson v. State, 166 Ga. App. 660, 305 S.E.2d 409, 1983 Ga. App. LEXIS 2288 (1983) (decided under former O.C.G.A. § 24-9-67). False confession theory. — Trial court did not abuse the court’s discretion or violate the defendant’s Sixth and Fourteenth Amendment rights by excluding expert testimony about false confessions; the Georgia Supreme Court found that the false confession theory was not reliable and had not yet reached a verifiable stage of scientific certainty. Crawford v. State, 283 Ga. App. 645, 642 S.E.2d 335, 2007 Ga. App. LEXIS 148 (2007), cert. denied, No. S07C0937, 2007 Ga. LEXIS 442 (Ga. June 4, 2007) (decided under former O.C.G.A. § 24-9-67). Trial court did not improperly exclude testimony from the defendant’s proffered expert witness on police interrogation tactics resulting in false confessions, as such theory had not reached a verifiable stage of scientific certainty, and because the issue of whether the defendant’s inculpatory statements were the results of threats or coercion was a matter the jury could discern for itself. Lyons v. State, 282 Ga. 588, 652 S.E.2d 525, 2007 Ga. LEXIS 781 (2007), overruled in part, Garza v. State, 284 Ga. 696, 670 S.E.2d 73, 2008 Ga. LEXIS 865 (2008) (decided under former O.C.G.A. § 24-9-67). 3. Witness Qualified as Expert Automobile mechanic. — Contention that testimony of witness qualified as an expert was erroneously admitted for the 24-7-702 reason that the witness had testified that the witness did not see the car before impact, and therefor could not testify as to the car’s value before the car was damaged, was without merit since the witness actually repaired the car, and was not only a mechanic, but had long experience in buying and selling cars of the same type and model. Hill v. Kirk, 78 Ga. App. 310, 50 S.E.2d 785, 1948 Ga. App. LEXIS 735 (1948) (decided under former Code 1933, § 38-1710). Specialist in obstetrics and gynecology. — In a prosecution for rape, a physician may offer the physician’s opinion as to what caused the tear in the victim’s vagina over an objection that the physician’s expertise to offer such an opinion has not been established, where the physician is duly qualified as a specialist in obstetrics and gynecology and testifies that one of the physician’s duties at the medical center where the physician worked was to examine rape victims. Holt v. State, 147 Ga. App. 186, 248 S.E.2d 223, 1978 Ga. App. LEXIS 2842 (1978) (decided under former Code 1933, § 38-1710). Qualified medical expert with a first-hand knowledge of the material facts is well within permissible bounds in stating the expert’s opinion and inferences concerning the existence and cause of a medical condition. McGuire v. Davis, 437 F.2d 570, 1971 U.S. App. LEXIS 12528 (5th Cir. 1971) (decided under former Code 1933, § 38-1710). Investigator testifying as an expert. — In an aggravated assault case, it was permissible for an investigator, testifying as an expert, to state that based on the investigator’s experience, persons who suffered from cuts or stab wounds often did not remember being stabbed. This was a conclusion that was beyond the ken of the average layperson; even if the investigator’s testimony was somewhat based upon hearsay, the opinion was mainly derived from the investigator’s many years of professional experience. Jackson v. State, 291 Ga. App. 287, 661 S.E.2d 665, 2008 Ga. App. LEXIS 474 (2008) (decided under former O.C.G.A. § 24-9-67). Officer properly qualified as expert witness in drug possession and distribution. — In a prosecution for possession of cocaine with intent to distribute 727 Witness Qualified as Expert (Cont’d) (O.C.G.A. § 16-13-30(b)), as the arresting officer testified to making 35 to 40 drugrelated arrests, about half of which were for possession with intent to distribute, the trial court did not abuse the court’s discretion in qualifying the officer as an expert witness in drug possession and distribution. Hight v. State, 293 Ga. App. 254, 666 S.E.2d 678, 2008 Ga. App. LEXIS 839 (2008) (decided under former O.C.G.A. § 24-9-67). Any error waived by failure to object. — Pro se defendant’s claim that the trial court improperly admitted lay testimony on blood splatters was rejected as defendant failed to object to the admission of the lay opinions at trial; further, in light of the overwhelming evidence of defendant’s guilt, any error was harmless. Swain v. State, 268 Ga. App. 135, 601 S.E.2d 491, 2004 Ga. App. LEXIS 870 (2004) (decided under former O.C.G.A. § 24-9-67). Expert testimony about signatures. — Trial court did not abuse the court’s discretion by ruling that expert testimony was admissible as the expert did not testify as to whether the signatures on the checks belonged to the widow, the defendant, or some other person as the expert merely testified that the signatures reviewed were substantially different and went on to describe the differences the expert noticed in a review of the materials. Carr v. State, 350 Ga. App. 461, 829 S.E.2d 641, 2019 Ga. App. LEXIS 324 (2019), cert. denied, No. S19C1422, 2020 Ga. LEXIS 15 (Ga. Jan. 13, 2020) (decided under former O.C.G.A. § 24-7-707). Civil Cases 1. In General Applicability to torts other than malpractice claim. — In a suit for simple negligence, negligence per se, wrongful death, intentional infliction of emotional distress, breach of contract, and negligent supervision and training, summary judgment was improperly granted to the defendants because the plaintiffs were not required to establish that the plaintiffs’ expert met the requirements of 24-7-702 O.C.G.A. § 24-7-702(c)(2)(D) as the plaintiffs’ suit was not a medical malpractice action as the facility where the plaintiffs’ son collapsed was a day facility that provided education, life skills, job assistance, and rehabilitation services to people with mental and physical disabilities, and the individual defendants listed in the case were non-medical personnel and personal care givers. Blake v. KES, Inc., 336 Ga. App. 43, 783 S.E.2d 432, 2016 Ga. App. LEXIS 110 (2016). No error in excluding expert testimony. — As vehicle occupants failed to satisfy the Daubert factors or any other reasonable criteria for purposes of measuring the reliability of their expert witness’s conclusions with respect to a vehicle accident that occurred in a construction zone, a trial court did not abuse the court’s discretion when the court excluded the witness’s testimony under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703); the expert’s conclusions were based solely on the expert’s own assertions and were unsupported by either the Daubert factors or any other reasonable reliability criteria. HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 697 S.E.2d 770, 2010 Ga. LEXIS 493 (2010) (decided under former O.C.G.A. § 24-967.1). It was within the trial court’s discretion to exclude an expert witness’s testimony because a sister and a brother failed to satisfy the Daubert factors or any other reasonable criteria by which the trial court could measure the reliability of the expert’s conclusions; the expert failed to cite any treatise or authority supporting the expert’s opinion, and the sister and brother presented no evidence that the expert had any experience that would supply the foundation supporting the expert’s conclusions. HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 697 S.E.2d 770, 2010 Ga. LEXIS 493 (2010) (decided under former O.C.G.A. § 24-9-67.1). Trial court did not abuse the court’s discretion by excluding evidence of one appellant’s intent as to the reconveyance of certain funds because no abuse of discretion occurred by excluding evidence of a cumulative nature that could have confused the jury about the primary issue 728 under consideration and created a re-trial. Interfinancial Midtown, Inc. v. Choate Constr. Co., 343 Ga. App. 793, 806 S.E.2d 255, 2017 Ga. App. LEXIS 479 (2017). Opinion of a witness qualified as expert may be given on facts proved by other witnesses. DOT v. Baldwin, 292 Ga. App. 816, 665 S.E.2d 898, 2008 Ga. App. LEXIS 874 (2008) (decided under former O.C.G.A. § 24-9-67.1). Timeliness of motion in limine. — In a customer’s personal injury action against a stylist and a hair salon alleging chemical burns, while a motion in limine to exclude the customer’s expert in chemistry was not timely under former O.C.G.A. § 24-9-67.1(d) (see now O.C.G.A. §§ 24-7-702, 24-7-703), the trial court properly considered the motion and granted the motion as the customer did not make the expert available for deposition until just one week prior to trial. Giannotti v. Beleza Hair Salon, Inc., 296 Ga. App. 636, 675 S.E.2d 544, 2009 Ga. App. LEXIS 301 (2009) (decided under former O.C.G.A. § 24-9-67.1). Subject matter improper for expert testimony. — In a negligence action, the trial court erred by allowing the investigating police officer to give expert testimony about the color of the traffic light as the color of the light was a question that average jurors could have answered for themselves, and because the color of the traffic light was the determining factor for assessing negligence, the officer’s expert opinion on this issue likely influenced the jury’s verdict; thus, based on such error, a new trial was ordered. Purcell v. Kelley, 286 Ga. App. 117, 648 S.E.2d 454, 2007 Ga. App. LEXIS 701 (2007) (decided under former O.C.G.A. § 24-9-67.1). Objections to expert opinions not timely filed. — In a tenant’s action against the leasing agent of the tenant’s apartment complex alleging that the tenant was injured by soot emitted from the apartment’s heating system, the trial court properly refused to exclude expert opinions on behalf of the tenant on the ground that the opinions were inadmissible under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703); although the agent had notice that the tenant intended to rely on the experts’ 24-7-702 opinions, it did not assert its claim until the last business day before the trial and therefore failed to seek a timely ruling no later than the final pretrial conference contemplated under O.C.G.A. § 9-11-16 and as required by former § 24-9-67.1(d). Ambling Mgmt. Co. v. Purdy, 283 Ga. App. 21, 640 S.E.2d 620, 2006 Ga. App. LEXIS 1478 (2006), cert. denied, No. S07C0621, 2007 Ga. LEXIS 265 (Ga. Mar. 26, 2007) (decided under former O.C.G.A. § 24-967.1). Expert testimony was properly allowed in a medical negligence action because the suing patient failed to timely challenge the expert evidence via former O.C.G.A. § 24-9-67.1(d) (see now O.C.G.A. §§ 24-7702, 24-7-703), by way of a pretrial hearing; moreover, even assuming that the untimeliness of the patient’s request for a hearing did not waive the particular grounds asserted in a motion to strike brought at the close of evidence, the patient nevertheless waived all remaining objections to the expert testimony by failing to object contemporaneously. Airasian v. Shaak, 289 Ga. App. 540, 657 S.E.2d 600, 2008 Ga. App. LEXIS 139 (2008) (decided under former O.C.G.A. § 24-967.1). In a negligence suit involving the death of an individual in an automobile collision, a trial court erred by declaring that application of former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703), with regard to a hitch manufacturer seeking to exclude plaintiff’s expert witness, would have been unconstitutional as the motion to exclude the expert was filed several months after the final pretrial conference had already taken place and, thus, the time period within which the trial court was required to hold a hearing and rule on the motion had already passed. However, application of the former statute would not have changed the trial court’s ultimate, and correct, conclusion that the hitch manufacturer’s motion to exclude the expert was without merit based on the time period for ruling on the motion having already passed. Ford Motor Co. v. Gibson, 283 Ga. 398, 659 S.E.2d 346, 2008 Ga. LEXIS 296 (2008) (decided under former O.C.G.A. § 24-9-67.1). Objections to expert timely filed. — Trial court did not err in granting the plaintiff’s motion in limine as to the defen- 729 In General (Cont’d) dant’s expert in a slip and fall case because the defendant did not identify the doctor as an expert witness until one business day before the consolidated pretrial order was filed, which reserved the plaintiff’s right to file motions to challenge any late-disclosed experts. Vineyard Indus. v. Bailey, 343 Ga. App. 517, 806 S.E.2d 898, 2017 Ga. App. LEXIS 525 (2017), cert. denied, No. S18C0480, 2018 Ga. LEXIS 314 (Ga. May 7, 2018). Expert’s opinion must be product of reliable principles and methods. — Trial court did not abuse the court’s discretion in applying former O.C.G.A. § 249-67.1 (see now O.C.G.A. §§ 24-7-702, 247-703), and excluding the testimony of two experts in plaintiffs’ personal injury suit because neither witness’s testimony was shown to be the product of reliable principles and methods. One expert’s testimony on the issue of causation lacked scientific support, and the other expert’s testimony on the issue of labeling used standards having no specific relevance to consumer use of products, and the opinion was based solely on data obtained from the Internet and from plaintiffs’ attorneys. Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603, 2008 Ga. LEXIS 249 (2008) (decided under former O.C.G.A. § 24-9-67.1). 2. Medical Experts Use of word “or” or “and” in former statute. — Legislature’s use of the word “or” between former O.C.G.A. § 24-967.1(c)(2)(A) and (c)(2)(B) (see now O.C.G.A. §§ 24-7-702, 24-7-703), followed by the legislature’s use of the word “and” between former § 24-9-67.1(c)(2)(B) and (c)(2)(C), indicated that a medical expert must show either active practice or teaching for at least three of the last five years, but that whichever of these may be the case, the expert must also be a member of the same profession as the person whose performance the expert was evaluating. For the purposes of former § 24-9-67.1, a pharmacist was not a member of the same profession as a medical doctor. Smith v. Harris, 294 Ga. App. 333, 670 S.E.2d 136, 2008 Ga. App. LEXIS 1179 (2008), cert. 24-7-702 denied, No. S09C0428, 2009 Ga. LEXIS 328 (Ga. June 8, 2009) (decided under former O.C.G.A. § 24-9-67.1). Interpretation of paragraph (c)(2). — Georgia Supreme Court views the requirements of O.C.G.A. § 24-7-702 subparagraphs (c)(2)(A) and (c)(2)(B) as together being conjunctive with subparagraphs (c)(2)(C) and (c)(2)(D) and, thus, holds that, to be qualified to testify as an expert, the proffered witness must be a member of the same profession as the defendant whose conduct is at issue, or be a physician satisfying the supervision requirements of subparagraph (c)(2)(D). Hankla v. Postell, 293 Ga. 692, 749 S.E.2d 726, 2013 Ga. LEXIS 784 (2013). Medical opinion based on incomplete history. — In an action filed pursuant to the Federal Employer’s Liability Act, 45 U.S.C. § 51 et seq., the trial court did not abuse the court’s discretion in excluding the testimony of an employee’s treating physician as the doctor’s conclusions were based on an incomplete medical history of the employee, without considering earlier lung-related illnesses, and while unaware of the employee’s prior chemical exposure and treatment by other physicians. Shiver v. Ga. & Fla. Railnet, Inc., 287 Ga. App. 828, 652 S.E.2d 819, 2007 Ga. App. LEXIS 1039 (2007), cert. denied, No. S08C0394, 2008 Ga. LEXIS 330 (Ga. Mar. 31, 2008) (decided under former O.C.G.A. § 24-9-67.1). Retired physician. — In a customer’s slip and fall case against a dry cleaner establishment, the trial court did not err by denying the customer’s motion for a new trial and by excluding the testimony of one of the customer’s expert witnesses. The expert was not qualified since the expert was retired and not a licensed physician and the testimony of that expert was cumulative of other expert testimony admitted at trial, therefore, any alleged error was harmless. Muskett v. Sketchley Cleaners, Inc., 297 Ga. App. 561, 677 S.E.2d 731, 2009 Ga. App. LEXIS 479 (2009), cert. denied, No. S09C1422, 2009 Ga. LEXIS 412 (Ga. June 29, 2009) (decided under former O.C.G.A. § 24-9-67.1). Medical malpractice. — In a patient’s medical malpractice action, the testimony of an expert witness was properly ex- 730 cluded as the opinion was based on facts stated in a hypothetical question which were not proven by other witnesses or other competent evidence. Moreover, a motion in limine entered against the patient as to another expert witness’s testimony was not addressed on appeal as the patient never called the expert to testify, and thus, the issue was abandoned. Hawkins v. OB-GYN Assocs., P.A., 290 Ga. App. 892, 660 S.E.2d 835, 2008 Ga. App. LEXIS 389 (2008), cert. denied, No. S08C1440, 2008 Ga. LEXIS 713 (Ga. Sept. 8, 2008) (decided under former O.C.G.A. § 24-9-67.1). Expert’s testimony was properly excluded in a medical malpractice suit for corrective bladder surgery for perforations following a hysterectomy because the expert was board certified in geriatrics, and the expert had not been engaged in the active practice of gynecology or urology for three of the five years before the patient’s operation. Hope v. Kranc, 304 Ga. App. 367, 696 S.E.2d 128, 2010 Ga. App. LEXIS 528 (2010), cert. denied, No. S10C1724, 2010 Ga. LEXIS 801 (Ga. Oct. 18, 2010) (decided under former O.C.G.A. § 24-9-67.1). Trial court did not abuse its discretion in denying the appellants’ motion to exclude an expert’s opinion that the decedent’s severe anemia was a proximate cause of the decedent’s death as the expert did not fail to consider, or give dismissive testimony of, other possible causes of death; the expert opined that the decedent’s severe anemia coupled with the decedent’s other comorbidities led to his death, but that the decedent probably would not have died when the decedent did without such severe anemia; and the appellant doctor acknowledged that the decedent’s severe anemia was life-threatening. MyFamilyDoc, LLC v. Johnston, 366 Ga. App. 459, 883 S.E.2d 404, 2023 Ga. App. LEXIS 23 (2023). Nursing expert. — In a mother’s medical malpractice action against a hospital, the trial court did not abuse the court’s discretion by finding that the mother’s witness was not admissible as an expert on whether any member of the hospital’s nursing staff breached the standard of care pursuant to former O.C.G.A. 24-7-702 § 24-9-67.1(c)(2)(D) (see now O.C.G.A. §§ 24-7-702, 24-7-703) because the witness deposed that the witness did not train or practice as a nurse, did not train nurses, did not supervise nurses outside of normal nurse-physician interactions, and did not hold out to be an expert in nursing or in the standard of care of nurses. Pendley v. S. Reg’l Health Sys., 307 Ga. App. 82, 704 S.E.2d 198, 2010 Ga. App. LEXIS 1105 (2010) (decided under former O.C.G.A. § 24-9-67.1). Trial court did not abuse its discretion in disqualifying two of the plaintiff’s expert witnesses as there was no evidence from the doctor’s original affidavit or deposition testimony that the doctor was a physician who during at least three of the last five years worked, supervised, taught, or instructed nurses, and the nurse was not qualified to tender an expert opinion given the absence of evidence or testimony concerning the nurse’s care or management of rehabilitation patients at risk for deep-vein thrombosis. Orr v. SSC Atlanta Operating Co., 360 Ga. App. 702, 860 S.E.2d 217, 2021 Ga. App. LEXIS 376 (2021). Pathologist. — Opinion of the plaintiff’s expert, a pathologist, failed the first element of Daubert because the expert relied on the theory that any exposure to the asbestos in the defendant’s product would contribute to the development of mesothelioma, yet the expert testified that the theory was essentially untestable and had not been tested. Thus, the expert’s testimony was properly excluded under former O.C.G.A. § 24-9-67.1(b)(2) (see now O.C.G.A. §§ 24-7-702, 24-7-703) since it was not the product of reliable principles and methods. Butler v. Union Carbide Corp., 310 Ga. App. 21, 712 S.E.2d 537, 2011 Ga. App. LEXIS 495 (2011), cert. denied, No. S11C1620, 2011 Ga. LEXIS 857 (Ga. Oct. 17, 2011) (decided under former O.C.G.A. § 24-9-67.1). Same profession requirement applies to medical experts. — Under former O.C.G.A. § 24-9-67.1(c) (see now O.C.G.A. §§ 24-7-702, 24-7-703), the trial court erred in allowing a pharmacist to testify about a physician’s negligence. A medical expert had to show either active practice or teaching for three of the last 731 Medical Experts (Cont’d) five years, and also had to be a member of the same profession as the person whose performance the expert was evaluating. Smith v. Harris, 294 Ga. App. 333, 670 S.E.2d 136, 2008 Ga. App. LEXIS 1179 (2008), cert. denied, No. S09C0428, 2009 Ga. LEXIS 328 (Ga. June 8, 2009) (decided under former O.C.G.A. § 24-9-67.1). Georgia Supreme Court construes the same profession requirement to apply to all proffered medical experts, even those experienced in the procedure at issue through active practice. Hankla v. Postell, 293 Ga. 692, 749 S.E.2d 726, 2013 Ga. LEXIS 784 (2013). Appellate court properly held that a trial court abused the court’s discretion by allowing an obstetrician/gynecologist to testify as an expert witness regarding a nurse midwife’s treatment rendered to a patient because the obstetrician/gynecologist was neither a member of the same profession as the midwife nor supervised midwives as required under O.C.G.A. § 24-7-702. Hankla v.