DONALD K. JOHNSON, individually, and DONNA HOOD, as Administratrix of the ESTATE OF CLAIRE GRACE JOHNSON, Petitioners,

v.

RIVERDALE ANESTHESIA ASSOCIATES, P.C. and ROBERT G. LAWHEAD, Respondents.

CASE NO. S01G1138

The Georgia Trial Lawyers Association ("GTLA") is a voluntary organization comprised of approximately 2,700 trial lawyers licensed to practice in this State whose clients have an interest in this Court's rulings on the important issue presented by this appeal.

Over the years the GTLA has consistently appeared as Amicus Curiae in various matters presented before the appellate courts of Georgia, as well as before the federal courts. It submits the following brief in support of petitioners' Motion for Reconsideration.

The GTLA respectfully requests that this Court carefully reconsider its decision in this case. The decision announces two new principles of evidentiary law which, if applied generally, would result in a dramatic restriction on the scope of admissible evidence.

First, the majority opinion holds that evidence is not admissible for credibility purposes if it is "possible" that the evidence is consistent with the witness's testimony. On pages 7 and 8, the opinion states that "the fact that an expert, in his own professional judgment, may elect a different course of treatment than that selected by a malpractice defendant does not impeach the expert's opinion that the defendant complied with the applicable standard of care, because it is possible that the treatments prescribed by both physicians fall within the standard of care." [Opinion, pp. 7-8 (emphasis added)] Under this standard, credibility evidence is inadmissible if the objecting party can show that it is "possible" that the witness's testimony and the evidence are both true. Such a standard is unprecedented and directly contradicts Georgia's longstanding law that "a party may show anything which in the slightest degree affects the credit of an opposing witness." Pound v. Medney, 176 Ga. App. 756, 760 (1985). Imposing such a limitation on credibility evidence will dramatically alter trials in this state by severely limiting the ways a party can attack a witness's credibility.

Second, in footnote 14 of the majority opinion, the Court explains that evidence of a physician's personal practices is inadmissible because "it is established that evidence that is equally supportive of two theories does not tend to show either one and should be excluded as irrelevant." [Decision, p. 8, n14] This new rule is unprecedented and before now has never been the law in Georgia. Indeed, the case cited as supporting this proposition is not even an evidentiary case and, if relevant at all, supports the opposite principle. See Hulbert v. Domino's Pizza, Inc., 239 Ga. App. 370, 374 (1999) (reversing worker's compensation appeal because wrong burden of proof applied; remanding for new proceeding to apply correct burden of proof to evidence supportive of two theories).

GTLA amicus submits that the best way to rectify these problems is to adopt the dissent as the majority opinion in this case. The dissent's position would not require a major overhaul of Georgia evidence law. Instead, adopting it would recognize that an expert's personal practices is one factor that a jury should be able to consider in evaluating a medical malpractice case.

A. The Current Decision Deserves Reconsideration Because it Makes Two Major Changes in Evidentiary Law.

The general principles of evidentiary law have remained relatively constant over the years. The primary developments have involved the application of these basic principles to new situations. In this decision, however, the Court makes two statements that will likely result in substantial changes to the basic principles of evidentiary law.

1. The current opinion would now exclude credibility evidence if it is merely "possible" that the evidence is consistent with the witness's testimony.

On pages 7 and 8, the opinion explains the basis for the conclusion that personal practice evidence is not admissible:

Thus, the fact that an expert, in his own professional judgment, may elect a different course of treatment than that selected by a malpractice defendant does not impeach the expert's opinion that the defendant complied with the applicable standard of care, because it is possible that the treatments prescribed by both physicians fall within the standard of care.

[Opinion, pp.7-8]

Under this new rule, credibility evidence will be inadmissible as long as it is possible to reconcile the credibility evidence with the witness's testimony. If implemented, this rule will dramatically change trials in this state. This opinion essentially holds that the rule governing the use of prior inconsistent statements will now apply to any form of credibility evidence. O.C.G.A. § 24-9-83 (impeachment by contradictory statements); Wynn v. State, 272 Ga. 861, 862 (2000)("prior statement must contradict or be inconsistent with the witness's in-court testimony"). This represents a tremendous departure from the traditional standard for admitting credibility evidence.

Before now, the law was clear that evidence was admissible if it "in the slightest degree affects the credit of an opposing witness" and "need not be of the kind and quality required for proving facts." Pound v. Medney, 176 Ga. App. 756, 760-61 (1985). This evidentiary principle is reflected in the pattern instruction on credibility of witnesses:

The jury must determine the credibility of the witnesses. In deciding this, you may consider all of the facts and circumstances of the case, including the witness's manner of testifying, their intelligence, means and opportunity of knowing the facts to which they testify, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or lack of interest in their personal credibility as you observe it. . . .

Suggested Pattern Jury Instructions, Vol. I, p.12. This charge assumes that a jury will hear any evidence that bears on a witness's testimony, including "the means and opportunity of knowing the facts to which they testify." The new standard will dramatically limit what a jury can consider.

If, for example, the defense in this case had called as a standard of care expert a pediatric anesthesiologist who had never provided anesthesia services to an adult patient, the new rule would prohibit the plaintiff from bringing out this information. It is entirely "possible" that the pediatric anesthesiologist would be correct in his testimony that the defendant's conduct complied with the medical standard of care despite the fact that the pediatric anesthesiologist had never provided anesthesia to an adult patient. Under the new rule, the expert's lack of experience would likely be inadmissible even though it would be highly relevant to the expert's "means and opportunity knowing the facts to which [he testified]." See Pattern Jury Instructions, p. 12.

One can imagine an unlimited number of similar potential facts that would be very relevant to a jury's assessment of a witness's credibility, but would be excluded under this new standard. Examples include the fact that a witness is paid for his time, has very limited experience in the subject at issue, has failed to publish any pertinent medical literature, has never held a faculty position at a medical school, or has been retired from the practice of medicine since the events in question. Each hypothetical fact would be important to the jury's determination of the credibility of witnesses, but could be excluded under this opinion because it would be "possible" that the hypothetical fact and the witness's testimony are both true.

Personal practice evidence falls neatly within the jury's charge on how to determine the credibility of witnesses. By informing the jury of an expert's own personal practices, the jury then learns more about the expert's "means and opportunity of knowing the facts" to which he testifies and can better assess his credibility. For example, Dr. Caplan in this case has very little experience providing anesthesia to a patient similar to Claire Johnson without pre-oxygenating her, so it would be fair for the jury to ask how he can know that doing so without pre-oxygenation is safe. Inquiring into the expert's personal practices also would allow the jury to know the basis for the expert's contention the standard of care permits the defendant's conduct. Indeed, personal practice evidence is relevant in numerous ways.⁽¹⁾

Evidence of an expert's personal practices is highly relevant to his credibility. It is now inadmissible because it is "possible" that the expert's personal practices and the defendant's chosen course are both within the standard of care. This rule will likely have broad implications far beyond medical malpractice cases. GTLA Amicus respectfully requests that the Court reconsider its decision.

2. This opinion now requires judges to make the determination of whether evidence "is equally supportive of two theories" and, if so, to exclude the evidence.

The opinion states that "it is established that evidence that is equally supportive

of two theories does not tend to show either one, and should be excluded as irrelevant." [Opinion p. 8, n14] The fact that the statement appears in a footnote makes it no less binding on trial courts in this state. This new rule would require trial judges to evaluate evidence and determine whether it is "equally supportive of two theories" and, if so, exclude the evidence. This is an unprecedented and unnecessary expansion of a trial court's role. Until this decision, the determination of whether evidence is "equally supportive" of competing theories or supports one over the other was left to the jury. See Robinson v. State, 203 Ga. App. 759, 760 (1992) ("resolution of conflicting theories drawn from evidence is for the jury and is not [the Court's] province to reweigh the evidence and their inferences drawn from it").

Amicus GTLA can find no case supporting this new proposition of evidence law. The case cited in the opinion does not address the issue and, if anything, actually supports the traditional rule. See Hulbert, 239 Ga. App. at 374. Hulbert involved an appeal from a superior court's order affirming the denial of a worker's compensation claim. The claimant, a Domino's pizza delivery man, was attacked while returning from a pizza delivery. Domino's Pizza argued that the incident was either an act of revenge unrelated to the claimant's employment with Domino's or that the injury was self-inflicted, either of which would result in the denial of benefits. In support of these theories, Domino's offered evidence that the claimant had plead guilty to sexual battery against the child of his wife's brother and that his brother-in-law could be responsible for the attack. Domino's also presented expert fire investigators who testified that the claimant's burn patterns indicated self-inflicted burn patterns. The Superior Court affirmed the administrative law judge's determination that the claimant had not proven by a preponderance of the evidence that the injuries were not caused by his brother-in-law or by himself.

The Court of Appeals reversed, holding that Domino's had the burden of proof on these issues, not the claimant. In issuing its decision, the Court discussed the evidence presented and noted the familiar proposition of law that "circumstantial evidence that equally supports two theories proves neither." Id. at 374. Importantly, the Court of Appeals did not hold that any of the evidence presented should have been excluded. Instead, it simply remanded the case to allow the administrative law judge to apply the correct burden of proof. In no way does Hulbert suggest that a judge should exclude evidence that is equally supportive of two theories. Instead, it suggests that the fact finder should hear the disputed evidence and decide whether and to what extent the evidence supports one side or the other.

Under longstanding evidentiary law, a jury should consider the evidence and determine which theory the evidence supports. In the medical malpractice context, the jury should consider evidence of an expert's personal practices and make the determination as to whether the evidence supports the plaintiff's theory, the defense theory, or neither theory. The judge should not make that determination.

B. Even If The Court Does Not Change The Outcome In This Case, It Should Issue A Clarifying Opinion Affirming That Trial Courts Have The Discretion To Admit Evidence Of An Expert's Personal Practices.

At the very end of the opinion, after nominally referring to a trial judge's discretion in evidentiary matters, the opinion states that Dr. Caplan's personal practice "was irrelevant to any issue of fact in controversy." [Opinion, p. 9] This statement would appear to hold as a matter of law that there are no circumstances under which a trial judge can decide that an expert's personal practices are relevant to some issue of fact in controversy. Clarifying this statement to indicate that a trial judge can either admit or exclude personal practice evidence would avoid some potentially undesirable results.

For example, if the defense elicits testimony that would reasonably cause the jury to believe that the expert himself would make the same medical decision that the defendant made or would teach his residents to make the same decision, the plaintiff ought to be able to bring out the expert's differing personal practices.⁽²⁾ Similarly, if the defendant elicits testimony attempting to quantify the physicians who would treat the patient in the same way the defendant did, the plaintiff ought to be able to point out the expert's differing practices. (Such quantification could occur in numerous ways, including testimony or argument that "doctors are trained to do X," "most doctors do X," the plaintiff's expert is incorrect because his proposed standard of care would not be feasible, etc.) These are just a few examples of the numerous ways the defense could abuse a complete prohibition against revealing their expert's personal practices.

In the event the result in this case stands, GTLA Amicus respectfully requests that the Court clarify its opinion to ensure that trial courts recognize that they retain the discretion to admit evidence of an expert's personal practices in circumstances where they believe it to be appropriate.

GTLA Amicus would emphasize that even a clarification to ensure that trial judges understand that they have discretion to admit personal practice evidence would represent a major change in the law and would not rectify the problems in the majority opinion discussed above. The majority opinion would still place entirely new standards on trial judges in exercising their discretion. Trial judges would still be forced to weigh evidence to determine whether it is "possible" that the witness's testimony and the proffered credibility evidence are both true [opinion, pp. 7-8] and to determine whether evidence "is equally supportive of two theories." [Opinion, p. 8 n.14.] These new rules would still represent a major change from the traditional evidentiary approach.

In fact, the entire notion that personal practice evidence is inadmissible represents a major change in the law. Before the Court of Appeals decision in Brannen v. Prince, 204 Ga. App. 866, 867-68 (1992), evidence of an expert's personal practices was routinely admissible. See Prevost v. Taylor, 196 Ga. App. 368, 369 (1990)(overruled in footnote 8 of the majority opinion); Slack v. Morehead, 152 Ga. App. 68, 71 (1979)(affirming directed verdict when only evidence offered by plaintiff at trial was the testimony of one physician that he would have treated the plaintiff differently); Laughridge v. Moss, 163 Ga. App. 427, 428 (1982)(holding evidence supported charge that "mere difference in views" between physicians is not sufficient by itself to establish malpractice). Under the traditional rule, personal practice evidence was admissible for the jury to consider, but not sufficient standing alone to establish malpractice. Laughridge, 163 Ga. App. 427, 428 (1982).

GTLA amicus urges the Court to return to the traditional rule and accept the dissent as the majority opinion. Alternatively, GTLA amicus requests that the Court issue a clarifying opinion to ensure that trial judges have no doubt that they have the discretion to admit personal practice evidence.

For the foregoing reasons, GTLA Amicus respectfully requests that the Court reconsider its decision in this case.

DOFFERMYRE SHIELDS CANFIELD KNOWLES & DEVINE

/s/ Kenneth S. Canfield

/s/ Geoffrey E. Pope

COOK, NOELL, TOLLEY, BATES & MICHAEL

/s/ J. Vincent Cook

HENRY, SPIEGEL, FRIED & MILLING, LLP

/s/ Phillip C. Henry

MATHIS & ADAMS

/s/ Charles A. Mathis, Jr.

BUTLER, WOOTEN, FRYHOFER, DAUGHERTY & SULLIVAN, LLP

/s/ Joel O. Wooten, Jr.

1. In its initial brief, pages 9 through 15, GTLA Amicus addressed in detail three specific ways personal practice evidence is relevant to an expert's credibility. For a more thorough discussion of why personal practice evidence should be admissible, please see the initial brief submitted by GTLA amicus.

2. GTLA Amicus submits that the defense's question in this case as to whether there was anything additional Dr. Lawhead could have done to make the anesthesia any safer for Ms. Johnson did open the door in this case. Dr. Caplan's personal practice contradicts his negative response to the question whether he "see[s] anything that Dr. Lawhead could've done that would've made it safer for Mrs. Johnson to have this anesthesia." [T-1156]