IN THE COURT OF APPEALS
STATE OF GEORGIA
ELLEN LENNEN, Appellant,
v.
STATE OF GEORGIA,
DEPARTMENT OF TRANSPORTATION, Appellee.
Case No. A991198

AMICUS CURIAE BRIEF OF THE
GEORGIA TRIAL LAWYERS ASSOCIATION

I. NOTICE OF APPEARANCE

COMES NOW the Georgia Trial Lawyers Association and, pursuant to Rule 25 of the Rules of the Court of Appeals of the State of Georgia, gives notice of its appearance in this action as Amicus Curiae, and respectfully prays that this Honorable Court consider the written arguments submitted by the GTLA on behalf of its members and clients. In support thereof, the GTLA shows that it is a voluntary organization comprised of approximately 2700 trial lawyers licensed to practice in this State whose clients have an interest in this Court's rulings on the important issues 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. The intent of the GTLA is not to support the petitioner or the respondent as Amicus Curiae. Rather, the GTLA desires and attempts to aid the Court to a proper resolution of this case by seeing that the law is correctly and thoroughly followed.

II. INTRODUCTION

This case involves the construction and purpose of the expert affidavit requirement in professional negligence cases as mandated by section 9-11-9.1 of the Georgia Civil Practice Act. In the trial court decision that triggered this appeal, the trial court misapprehended the requirements and function of the expert affidavit in professional negligence cases. Specifically, the trial court ordered the Plaintiff to go well beyond the minimal pleading requirements of section 9-11-9.1 and ordered the Plaintiff to satisfy an evidentiary burden even though the Plaintiff had not yet had the opportunity to engage in discovery. The GTLA urges this Court to reverse the decision below. Section 9-11-9.1 has a limited purpose in preventing frivolous lawsuits and contains no additional substantive or evidentiary allegations beyond those expressly enumerated. Since an expert affidavit is required in all professional negligence cases, this case is of great importance. Without correction, the trial court's decision will confound pleading issues in professional negligence cases and impact future tort litigants in ways not intended by the legislature.

III. ARGUMENT AND CITATION OF AUTHORITY

A. Section 9-11-9.1 serves a limited and distinct purpose to protect against frivolous malpractice suits.

Section 9-11-9.1 provides that "[I]n any action for damages alleging professional malpractice . . .. the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim." The statute does not impose, either expressly or impliedly, any additional requirements on plaintiffs in malpractice actions. Instead, the limited and distinct purpose of this statute is to weed out frivolous professional malpractice lawsuits.

As stated by the court in Bowen v. Adams, 203 Ga. App. 123, 416 S.E.2d 102 (1992), "[t]he purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous lawsuits being filed, not to require an Appellant to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer." Indeed, courts have consistently recognized that the role of a section 9-11-9.1 expert affidavit is only to protect against groundless assertions of liability against professionals. See Hewitt v. Kalish, 264 Ga. 183, 184 (1994). For this reason, when construing a section 9-11-9.1 affidavit, "all doubts should be resolved in plaintiff's favor, even if an unfavorable construction may be possible so long as construction does not detract from the purpose of § 9-11-9.1 of reducing the number of frivolous malpractice suits." Id. (citing Gadd v. Wilson, 262 Ga. 234, 235, 416 S.E.2d 285 (1992)). Thus, dismissal on the grounds that an expert affidavit is insufficient should be cautiously granted and only in cases where the affidavit does not advance the limited purpose of section 9-11-9.1.

B. Plaintiff's § 9-11-9.1 expert Affidavit need not establish that an exception to the waiver of sovereign immunity exists under the Georgia Tort Claims Act.

In the case below, the trial court ruled that the Plaintiff must comply with the Georgia Torts Claims Act in its pleadings. The Order dismissed the Plaintiff's case in its entirety on the ground that the Plaintiff failed to allege facts sufficient to establish that the "plan or design exception" to the waiver of immunity under the Georgia Tort Claims Act does not apply. Specifically, the trial court required the Plaintiff to demonstrate that the DOT prepared the original plan or design for the subject intersection and that such plan was not in compliance with generally accepted engineering or design standards in effect at the time of the preparation of the plan or design at issue. The Order further required the Plaintiff to establish the time the plans and designs were prepared in order to avoid dismissal.

The trial court's decision is contrary to established Georgia law in several respects. First, requiring the Plaintiff to affirmatively plead in her expert affidavit circumstances demonstrating that an exception to the waiver of sovereign immunity is not applicable does not comport with the purpose of section 9-11-9.1. As addressed, section 9-11-9.1 imposes a minimal requirement on a plaintiff and is designed to eliminate frivolous lawsuits. A section 9-11-9.1 affidavit should be construed most favorable to the plaintiff and, even when an unfavorable construction is possible, doubts should be resolved in the plaintiff's favor so long as such construction does not detract from the purpose of section 9-11-9.1. Hutchinson v. Divorce & Custody Law Center of Arline Kerman & Assoc., P.C., 215 Ga. App. 25, (1994). In the instant case, the trial court required the Plaintiff to plead inter alia that the DOT prepared the original plan or design for the intersection as well as the date on which the DOT prepared the plan design. Plainly, these facts do not advance any legislative goal of avoiding groundless lawsuits. Moreover, it is not even possible for the Plaintiff to properly allege these facts without the opportunity to engage in discovery.

The decision of the trial court in requiring the Plaintiff to demonstrate that the "design and plan exception" to the waiver of sovereign immunity does not exist impermissibly imposes an evidentiary burden on the Plaintiff at the pleading stage. "Unlike O.C.G.A. 9-11-56, which imposes an evidentiary requirement in the context of summary judgment on the merits, O.C.G.A. 9-11-9.1 merely imposes an initial pleading requirement on the Plaintiff in a malpractice action." Bowen v. Adams, 203 Ga. App. 123 (1992). An expert affidavit that would be insufficient to satisfy the evidentiary standards of O.C.G.A. 9-11-56 may nevertheless be sufficient to satisfy the pleading standards of O.C.G.A 9-11-9.1. Id. The evidentiary merits of a suit are properly contested in a motion for summary judgment.

Furthermore, contrary to the position of the Defendant DOT and the trial court, the Georgia Tort Claims Act does not require the Plaintiff to establish that an exception to the waiver of sovereign immunity does not exist. Defendant DOT argues that, in addition alleging at least one negligent act or omission on behalf of Defendant DOT that proximately injured the Plaintiff, the Plaintiff's pleadings must also demonstrate that the "design or plan" exception to the broad waiver of immunity is not applicable. However, none of the cases cited by Defendant DOT stand for the proposition that a plaintiff must allege facts demonstrating that an exception to the waiver of sovereign immunity is not applicable. The Plaintiff simply does not have the burden of disproving the various exceptions to the wavier of sovereign immunity at the pleading stage. Requiring the Plaintiff to anticipate which exceptions the Defendant DOT might rely upon and then affirmatively disprove them in her pleadings is not practical, logical, or necessary under any interpretation of the GTCA.

Even assuming that the rules concerning the burden of proof and burden of going forward do give the Plaintiff the burden of disproving the applicability of exceptions to the waiver of sovereign immunity, the Plaintiff's burden would be a "burden of proof" for which discovery would be essential in order to prevail. The State may not require a plaintiff to disprove exceptions to the waiver of sovereign immunity, and then remove the only procedural device (i.e., discovery) available to a plaintiff in order to satisfy such a burden. At a minimum, the court must recognize that whether an exception to the waiver of sovereign immunity applies in a factual situation is a issue of law that should be addressed at trial or by summary judgment, after the facts have been fully disproved.

Affording discovery prior to the determination of whether an exception to the waiver of sovereign immunity is applicable is particularly important in cases brought under the GTCA because the State is the only entity that has possession and control of all pertinent facts necessary to establish such an exception. In the present case, Defendant DOT is the only party in control of the plans and designs for the original intersection and passing lane project which is the subject of this lawsuit. Similarly, the date the subject intersection plans and designs were prepared is known exclusively by Defendant DOT. The rules of pleading and the Georgia Tort Claims Act do not require the Plaintiff to plead such facts when such facts cannot possibly be known without discovery. Instead, Defendant DOT's claim of sovereign immunity to the Plaintiff's lawsuit is properly considered at a motion for summary judgment at which Plaintiff can present requisite proofs. Without an opportunity to discover requisite proofs, many future tort litigants will face an insurmountable obstacle in pursuing their claims under the Georgia Tort Claims Act.

C. Plaintiffs Complaint and § 9-11-9.1 expert Affidavit adequately plead an action for professional negligence against the Department of Transportation.

A review of the Complaint of the Plaintiff and the expert Affidavits of Herman A. Hill attached thereto demonstrate that the Plaintiff has properly pled an action against the Defendant DOT. A least one negligent act or omission of negligence on the part of the Defendant DOT in the design, operation and maintenance of the subject intersection was demonstrated. The Plaintiff's Complaint and the Affidavit of Herman A. Hill allege that the Defendant DOT was negligent in the following ways:

(a) negligently designing the subject intersection without a stop and go traffic signal and without other traffic control devices in violation of generally accepted engineering and design standards in effect at the time the plans were designed for the intersection;

(b) negligently designing and maintaining the subject intersection with inadequate sight distances in violation of generally accepted engineering and design standards;

(c) negligently failed to timely reconsider its design of the intersection and install traffic control devices after it had notice of its dangerousness;

(d) negligently failed to take reasonable and necessary steps to install the necessary traffic signal in a timely manner after it was determined that the device was necessary to ensure safety;

(e) negligently failed to properly design and monitor the intersection; and

(f) negligently failed to utilize traffic control at the intersection as required by recognized standards and guidelines.

These allegations and the Affidavit of Herman A. Hill satisfy any pleading requirement of 9-11-9.1 and Georgia Tort Claims Act. Specifically, the Affidavits satisfactorily allege that any alleged plans or designs for the subject intersection were not prepared in substantial compliance with generally accepted engineering or design principles in effect at the time of the preparation of the plans or designs.

Defendant DOT's argument that the Plaintiff's expert, Herman A. Hill, cannot demonstrate his competence to testify as to generally accepted engineering standards without also averring the date at which the plans and designs were prepared is flawed. Again, this ruling misapprehends the scope and purpose of a section 9-11-9.1 expert Affidavit. The court in Hewitt v. Kalish, 264 Ga. 183, 442 S.E.2d 233 (1994), held that section 9-11-9.1 does not establish an evidentiary standard regarding the affiant's competency that must be proven at the pleading stage. Moreover, the same conclusion is reached by invoking the pleading rule that a complaint may not be dismissed for an insufficient affidavit unless the affidavit "discloses with certainty that the plaintiff would not be entitled to relief under any state of provable facts," Bowen v. Adams, 203 Ga. App. 123, 416 S.E.2d 102 (1992).

In this case, the Plaintiff's expert, Herman A. Hill, stated that he was competent to testify and this conclusion is permissible in pleadings. Section 9-11-9.1 does not impose an additional evidentiary requirement upon the Plaintiff. Hewitt, supra at 123. Further, and importantly, the facts alleged in the expert Affidavits do not disclose with certainty that the Plaintiff would not be entitled to relief under any state of provable facts. To the contrary, the date on which the designs and plans were prepared is a provable fact. The trial court erred in dismissing the Plaintiff's Complaint and her expert Affidavits on the ground that her expert, Herman A. Hill, was not competent to testify because he failed to allege the date at which the plans and designs of the subject intersection were prepared.

IV. CONCLUSION

The expert Affidavit requirement of Section 9-11-9.1 imposes a pleading obligation upon a plaintiff in a malpractice action for the limited purpose of preventing frivolous lawsuits. This amicus respectfully cautions against engrafting additional and unintended evidentiary hurdles upon this provision. Misuse of the expert Affidavit will have broad ramifications for many future tort litigants, especially in the arena of the Georgia Tort Claims Act.

This brief prepared by:
David Wm.Boone
3166 Mathieson Drive
Atlanta, Georgia 30305
(404)239-0305