IN THE SUPREME COURT
STATE OF GEORGIA
DEBRA CRITSER and JERRY CRITSER, Appellants
v.
ISAAC JOSEPH McFADDEN, Appellee
SUPREME COURT DOCKET NO. S03C0875
BRIEF OF THE AMICUS CURIAE COMMITTEE
GEORGIA TRIAL LAWYERS ASSOCIATION

COMES NOW the AMICUS CURIAE COMMITTEE OF THE GEORGIA TRIAL LAWYERS ASSOCIATION ("GTLA") and files this, their Amicus Curiae Brief, and shows this Honorable Court as follows:

I. STATEMENT OF INTEREST

The Georgia Trial Lawyers Association is an association comprised of members of the State Bar of Georgia that are committed to the preservation of the jury system. GTLA, through its Amicus Curiae Committee, frequently submits briefs in favor of or in opposition to positions taken by the courts on a variety of issues. As such, the Amicus Curiae Committee of GTLA submits this Brief in order to assist the Supreme Court as it considers whether to allow the charge at issue in this case, which (a) is not supported by any authority from any court in the State of Georgia; (b) is not approved by the Council of Superior Court Judges of Georgia; (c) requires the jury to follow a format of deliberation that is not appropriate generally and to the case sub judice; (d) is not adjusted to the facts of this case; (e) is argumentative; and (f) requires that the jury improperly bifurcate their deliberations.

II. ARGUMENT AND CITATION OF AUTHORITY

The charge at issue in this case, which lays out a specific blueprint regarding the jury’s deliberations in an argumentative fashion, is not appropriate to negligence cases generally and is not adjusted to the facts of this case. While Appellee and Amicus MAG Mutual ("MAG Mutual") maintain that the subject charge does nothing but restate the law of Georgia, the charge actually invades the province of the jury regarding their methods of deliberation and argues the defense perspective of the case. As such, the subject charge should be specifically disapproved by this Court. The subject charge is as follows:

I charge you that you must consider three separate questions during your deliberations in this case. These questions must be considered separately. First, you should consider the question of negligence, or whether the defendant departed from the standard of care, as I will explain that phrase to you. If you find that the defendant did not depart from the applicable standard of care, then you should go no further and you must return a verdict in favor of the defendant or those defendants.

If you find that the defendant departed from the standard of care, you should consider the second question only with respect to such defendant who departed from the standard of care. That question is whether the acts or omissions departing from the standard of care proximately caused the damages the plaintiff’s claiming. I will instruct you further on the meaning of proximate causation. If you find that the alleged negligent acts or omissions were not the proximate cause of the damages claimed, then you should go no further and you must return a verdict in favor of that defendant.

If you find that any defendant acted negligently and that those negligent acts or omissions proximately caused the damages claimed, you should then consider the third issue, which is the amount of compensatory damages.

A. THE CHARGE REQUIRES A FORMAT OF DELIBERATION THAT IS WITHOUT AUTHORITY AND ALSO MISSTATES GEORGIA LAW

As already noted in Appellants’ Brief, this charge is without any support from any court in the State of Georgia, and is not an approved pattern charge from the Council of Superior Court Judges of Georgia. In addition, the subject charge requires a method of deliberation that is wholly unnecessary and has no support under fundamental negligence law.

The law of Georgia does not require that jurors to deliberate in any particular order in their effort to determine whether plaintiff or defendant should prevail. Indeed, Georgia law holds that charges that suggest a certain method of reasoning should not be given. Clark v. Southeast Atlantic Corp., 189 Ga.App. 629, 630 (1988)("A charge which states inferences from the evidence, reasoning, or conclusions is argumentative.")

The cases that are repeatedly cited by Appellee and MAG Mutual do not contain any holding that a certain order of deliberation must be followed. The proposition that these cases stand for is the same fundamental principle that law students learn in their first semester: that a plaintiff must prove duty, breach, causation and damages in order to prevail. The order that the jury chooses to consider these elements is completely irrelevant, so long as all elements are examined. The subject charge creates new law out of thin air that a particular order must be used during deliberations, when in fact a jury should be allowed to deliberate in any manner that best suits the reasoning processes and group dynamics of the individual jurors, provided that all elements are examined and found before a verdict is rendered in favor of a plaintiff.

It should also be pointed out that the statement in the charge that all elements must be considered separately is a misstatement of Georgia law. Negligence and causation are not separate issues as opined in the charge, but instead have been noted to be "inextricably intertwined." Campbell v. Hosp. Auth. of Cobb Co., 195 Ga. App 402, 403 (1990). As such, the statement in the charge that such matters must be considered separately is not a correct statement of law, and thus the charge should be disapproved and the case reversed.

B. THE SUBJECT CHARGE UNDERMINES ANY PLAINTIFF’S CASE THAT RELIES UPON THE USE OF CIRCUMSTANTIAL CAUSATION EVIDENCE FOR PROOF OF NEGLIGENCE

In addition to invading the province of the jury regarding the nature of their deliberations and misstating the law of Georgia, the subject charge is not adjusted to the facts of this case. As discussed in Appellants’ Brief, their theory relied upon a "backward-looking" approach which this charge clearly conflicts with in its requirement that negligence be considered first without the context of the evidence of causation.

GTLA would suggest that the Court to consider the realities of pursuing a medical malpractice case such as the one sub judice. The best case scenario for a plaintiff in these circumstances is to find, either by testimony or admission in the medical records, that the defendant breached the standard of care in his or her diagnosis or treatment of the patient. Of course, such testimony or written admissions are practically impossible to obtain in real world circumstances, so the question then becomes: How else can such a case be proven? To put it simply, one must look at the nature of the patient’s injuries, determine how they could have been injured, and try to rule out all competing conclusions based upon the preponderance of the evidence available, which is usually circumstantial in such cases.

There is nothing inappropriate or improper with such a methodology, nor could there be, because it is simple deductive reasoning. It is used by investigative agencies, attorneys, and by anyone else seeking the cause of some mishap, whether it involves a plane crash, a fatal car collision, or an ill patient. If the direct evidence does not provide a reliable answer to the question, then one works backwards from the end result, locating those clues and pieces of evidence that point to the cause of the problem. It is this procedure that Appellants suggested to the jury in closing argument, and there is nothing wrong with the jury conducting their deliberations in such a manner.

The problem then arose, however, because the subject charge specifically told the jury that the first inquiry they must make is whether defendant breached the standard of care. Appellee, well aware of the effect of the language of the subject charge, told the jury in closing that they must consider the breach of the standard of care as the first issue – "It is the law". [T 550]. Thus, the jury was instructed by the Court, and it was re-emphasized in closing argument, that they must examine the standard of care issue first in a vacuum – without the context of the significant circumstantial evidence on the issue of causation. Such a confusing instruction effectively eviscerated Appellant’s closing argument, and it also was in conflict with the trial court’s other instructions on consideration of circumstantial evidence. As such, the subject charge should be disapproved as confusing and not adjusted to the facts, and this case should be reversed. Byrd v. Medical Center of Central Georgia, 258 Ga.App. 286, 291 (2002); Gunn v. Dept. of Transp., 222 Ga.App. 684, 686 (1996).

C. THE CHARGE IS ARGUMENTATIVE AND IS NOT AN EVENLY BALANCED STATEMENT OF THE LAW

A jury charge should be a fair and balanced statement of the law in regards to both parties. Atlantic Coast Line R.R. Co. v. Coxwell, 93 Ga.App. 159, 166-167 (1955). As written, the subject charge repeatedly speaks in terms of finding for the defendant, and the charge never states that the jury should find for the plaintiff on the issues before it. As such, the charge is argumentative in that it essentially becomes a defense argument instead of a balanced interpretation of the law favoring neither side. By repeatedly stating that the jury should find for the defendant, the charge also intimates that the Court has such an opinion about the facts of the case. As such, the subject charge should be rejected and the case should be reversed. Sapp v. Johnson, 184 Ga.App. 603, 605 (1987); Moon v. Kimberly, 116 Ga.App. 74, 75 (1967).

D. THE CHARGE REQUIRES AN UNNECESSARY BIFURCATION BETWEEN LIABILITY AND DAMAGE ISSUES

The subject charge also requires a bifurcation regarding the issues of liability and damages, when no such bifurcation is supported by the evidence. The trial court has the discretion to bifurcate liability and damages "in furtherance of convenience or to avoid prejudice." O.C.G.A. § 9-11-42(b). No such motion was made by Appellees, and the trial court made no such findings regarding convenience and prejudice during the course of the trial.

However, the subject charge effectively required the jury to split up these issues without any showing that such bifurcation was necessary under the grounds described under O.C.G.A. § 9-11-42(b). If the trial court had bifurcated the trial without any showing of convenience or prejudice as required by the statute, then such a decision would likely be reversed upon appeal. The same should be true in regards to the jury’s deliberations. Absent a showing that such bifurcation is essential for convenience reasons or to combat prejudice, any such instructions should be rejected. Given that the subject charge required the jury to conduct an unnecessary bifurcation in their deliberations, without any showing that said bifurcation was necessary, the charge should be expressly rejected by this Court and the case should be reversed.

Respectfully submitted, this ____ day of October, 2003.

/s/ Mark L. Stuckey

MARK L. STUCKEY, LLC
P.O. Box 7204
Macon, GA 31209-7204
(478) 757-9531 Phone
(478) 757-0675 Facsimile