Trial Practice and Procedure - Jason Crawford, Matthew E. Cook, J. Clay Fuller, Michael A. Eddings, and Dustin T. Brown

• Publication year: 2003

Trial Practice and Procedureby Jason Crawford^*

Matthew E. Cook^**

J. Clay Fuller^***

Michael A. Eddings^**** and

Dustin T. Brown^*****

I. Introduction

This survey period yielded several decisions of interest and importance to practitioners trying cases and preparing for trial. This Article will analyze the recent judicial developments in the law relating to evidence, insurance, jurors and jury instructions, professional liability, service of process, and damages, as well as other issues of import to the trial practitioner.

II. Case Law

A. Evidence

During this survey period, the Georgia Supreme Court clarified the self-contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc.¹ In CSX Transportation, Inc. v. Belcher,² the state's high court held, in division one of its opinion, that if a party adopts a prior unsworn statement under oath, and that adopted statement contradicts other sworn testimony given by that same party, the testimony that is favorable to the party's position must be disregarded.³ The court overruled a court of appeals opinion from last year, which held that even if a party affirms the truthfulness of a prior unsworn statement under oath, and even if that unsworn statement contradicts other sworn testimony given by the party, the Prophesy rule cannot be invoked.⁴

The holding in Belcher was dictum because the court found in division two that plaintiff had not actually adopted, during his sworn deposition, the allegedly contradictory unsworn statement.⁵ The decision highlights the need for trial practitioners to prepare their clients meticulously before their depositions. Specifically, lawyers should (1) insist upon receiving through written discovery any and all statements given by the client; and (2) prepare the client only to adopt portions of prior statements that are unconditionally true.

In Wood v. D. G. Jenkins Homes, Inc.,⁶ the court of appeals reversed the trial court's exclusion of other similar incident evidence.⁷ Plaintiffs sued defendant-builder for building a house too close to plaintiffs' property in violation of a setback requirement and for building a cross tie wall that encroached on plaintiffs' property. In support of their punitive damages claim, plaintiffs attempted to introduce evidence that the builder had repeatedly violated setback requirements. The trial court ruled that the evidence was inadmissible in the first phase of the trial, the phase that would determine liability for compensatory and punitive damages. The trial court further held that if the jury were to find the builder liable for punitive damages, the other similar incident evidence would be admissible in the second phase of the trial, in which the jury determines the amount of punitive damages.⁸

The court of appeals reversed, recognizing, as the point of departure, the bedrock principle that other similar incidents are relevant to the phase one issue of liability for punitive damages.⁹ The real question became whether the probative value was substantially outweighed by the possible prejudicial effect of the evidence.¹⁰ In most cases, such evidence should be admitted.

In Yang v. Washington,¹¹ the court of appeals held that a trial court should allow a litigant to voir dire an expert witness concerning his qualifications.¹² The court also held that if the trial court denies a litigant the opportunity to voir dire the witness, the error is harmless so long as the litigant is allowed a full cross-examination.¹³

In a medical malpractice case decided this survey period, Byrd v. Medical Center of Central Georgia, Inc.,¹⁴ the court of appeals found that the trial court abused its discretion by excluding from evidence a hospital surgery department's service manual that both supported plaintiff's claim that defendants violated the applicable standard of care and contradicted defense testimony about the standard of care.¹⁵ The court rejected the argument that the manual applied to the surgery department generally and not to gynecologists performing gynecological surgery who had never seen the manual.¹⁶

B. Insurance

The court of appeals untangled complex subrogation issues in International Maintenance Corp. v. Inland Paper Board & Packaging, Inc.¹⁷ In that case, the workers' compensation carrier and the employer of the injured worker successfully intervened to protect their subrogation interest in the employee's tort action. However, the trial court dismissed the intervenors' claims because of a conflict of interest that became apparent during the litigation.¹⁸

The employer agreed to indemnify one of the tortfeasors that was being sued by the employee. The workers' compensation carrier was also the liability carrier for the employer and, by virtue of the indemnification agreement, became the ultimate liability carrier for the tortfeasor. Therefore, when the tortfeasor moved for summary judgment, rather than supporting the position of the injured employee (and the subrogation claims that they supposedly intervened to protect), the intervenors urged the trial court to grant the tortfeasor's motion for summary judgment.¹⁹

The appellate court characterized the actions of the intervenors as "'blatantly egregious' and 'fundamentally wrong,'"²⁰ but nonetheless found that the trial court lacked the power to prevent such actions by litigants.²¹ In so doing, the court of appeals cited statutory and case authority for the proposition that a trial court lacks discretion when ruling on an initial motion to intervene brought pursuant to the workers' compensation subrogation statute, Official Code of Georgia ("O.C.G.A.") section 34-9-11.1.²² The court of appeals chose not to allow the trial court to punish an intervenor that, once allowed in the case, abuses the legislatively granted right to intervene by using its status as a party in the case to advance an improper agenda.²³

In division two of its opinion, the court held that when intervention is allowed pursuant to subsection (b) of O.C.G.A. section 34-9-11.1, the court may properly allow a plaintiff to dismiss a defendant from the lawsuit over the intervenors' objection.²⁴ The statute and cases make clear that after such a settlement with a tortfeasor, the dispute is entirely between the injured employee and the intervenors.²⁵ The court noted that the ruling would have been different if the employer or insurance company were a party pursuant to subsection (c) of O.C.G.A. section 34-9-11.1, which allows the employer and or insurer to sue the tortfeasor directly.²⁶ The court also suggested that the ruling might have been different if the injured employee settled with the tortfeasor before bringing suit.²⁷ While the former observation comports with authority from the Georgia Supreme Court,²⁸ the latter point is inconsistent with the court's own analysis. If an injured employee may settle with and dismiss a tortfeasor from a filed lawsuit, and then the matter becomes purely one of reimbursement between the employee and the employer or insurance carrier, why should the outcome be any different if a lawsuit has not been filed? The court left that question for future appellate determination.

In a straight forward yet important case for trial practitioners, Horace Mann Insurance Corp. v. Mercer,²⁹ the court of appeals reaffirmed the principle that multiple uninsured or underinsured motorist coverages "stack," even if the insurance policy expressly purports to prevent stacking.³⁰ The court held that when a person is the beneficiary of multiple policies covering multiple vehicles, the coverages may be stacked.³¹ Such a situation is still legally different from when an insured is the beneficiary of one policy covering multiple vehicles—a situation in which stacking may be prohibited.³² According to the court, this distinction is derived from the text of Georgia's Uninsured Motorist Statute.³³

C. Jurors and Jury Instructions

This survey period, the appellate courts applied, from last year's survey period, the supreme court's landmark holding in Kim v. Walls.³⁴ In Kim the supreme court affirmed the court of appeals determination that when a potential juror expresses bias against a party, the trial court is not free to rehabilitate the juror with talismanic questioning but must allow the challenging party a thorough opportunity to voir dire the juror and explore the extent of the juror's bias.³⁵

The court of appeals applied these principles in Powell v. Amin³⁶ In Powell a prospective juror named Atkinson admitted that he was a pharmacist who derived income from prescriptions written by defendant doctor and that he would be reluctant to serve on the jury.³⁷ The trial court asked the juror the "'talismanic question' of whether he thought he could base his decision solely and exclusively upon the evidence"³⁸ and did not allow counsel to conduct "'voir dire of sufficient scope and depth to ascertain any partiality.'"³⁹ The court of appeals ruled that the trial court abused its discretion by qualifying juror Atkinson in this manner.⁴⁰

The court of appeals held that the trial court's qualification of prospective juror Burch, who expressed a similar bias in favor of defendant-doctor, was not an abuse of discretion because counsel was offered the opportunity to conduct further voir dire but declined.⁴¹ The opinion makes clear that the key is the opportunity for a thorough and sifting voir dire of the potential juror.⁴² Courts should afford counsel the opportunity to flesh out fully the juror's biases. Counsel who want to preserve the issue on appeal must request that opportunity.

This survey period, in Zwiren v. Thompson,⁴³ the supreme court answered the question whether, in a malpractice case, an expert's opinion on proximate cause must be expressed to a reasonable degree of medical certainty or, instead, to a reasonable degree of medical probability.⁴⁴ The supreme court held that either statement is acceptable.⁴⁵ In an attempt to remedy the confusion that has plagued...