author: ELDRIDGE, Judge. Beasley, Judge,

text:
    A97A1314, A97A1315.
    GOLDSTEIN v. GOLDSTEIN (two cases).
    (494 SE2d 745)
   ELDRIDGE, Judge.

Sandra Goldstein-Pfisterer appeals from the judgment of the Superior Court of Cobb County holding her in contempt of the custody provisions of a Cobb County divorce decree and modifying those custody provisions. We affirm.

Divorced in 1995 in Cobb County, Georgia, Mitchell Goldstein and appellant Sandra Goldstein-Pfisterer were awarded joint custody of their daughter. The court gave Mr. Goldstein sole power to make decisions regarding schooling and designated his Cobb County residence as the child’s primary residence. The court also set out a detailed schedule for shared physical custody.

Appellant repeatedly violated the custody order by, among other things, removing the child from school without permission, exceeding her vacation time with the child, failing to give the required notice of the days she intended to have the child, and allowing third parties unknown to the father to care for the child. On September 5, 1996, appellant surreptitiously removed the child from school and took her to Switzerland, where they have remained.

Upon arriving in Switzerland on September 6, appellant immediately obtained an ex parte “emergency” order from the District Court in Hinwil, Switzerland, granting appellant temporary sole custody of the child pending an inquiry into the child’s well-being.

On September 16, 1996, Goldstein filed two separate actions in Cobb Superior Court. Citing appellant’s contumacious conduct and the child’s best interests, he first petitioned the court to modify the custody provisions of the Cobb County divorce decree in order to award him exclusive custody of the child. He then filed an application to hold appellant in contempt of the custody provisions of the divorce decree. In both actions, he alleged appellant was a Swiss national and resided in Switzerland. Both actions were personally served on appellant in Switzerland pursuant to the international service provisions of the Hague Conventions. Appellant signed the service papers.

On September 17, Goldstein-Pfisterer filed an original complaint in Cobb Superior Court seeking to modify the custody provisions of the Cobb County divorce decree through the domestication of the District Court in Hinwil’s temporary custody order of September 6.

Upon motion, the trial court consolidated all three custody-related actions and heard them together on November 25. Appellant appeared through her attorney. The trial court found appellant in contempt and ordered her to purge herself by returning physical custody of the child to Goldstein within 30 days. The Cobb Superior Court awarded physical custody of the child to Mitchell Goldstein and ordered the return of the child. Held:

1. Appellant Goldstein-Pfisterer challenges the Cobb County Superior Court’s exercise of subject matter jurisdiction over Mitchell Goldstein’s custody suit. She contends that pursuant to OCGA § 19-9-46 (a) of the Uniform Child Custody Jurisdiction Act (“UCCJA”) (OCGA § 19-9-40 et seq.), pending custody proceedings in the District Court of Hinwil, Switzerland, prevented the exercise of the Cobb County Superior Court’s subject matter jurisdiction.

(a) Cobb County Superior Court had subject matter jurisdiction over Goldstein’s custody suit, since Cobb County, Georgia, is the “home state” of the child. OCGA § 19-9-43 (a). However, “[t]he [UCCJA] is applicable only to states, territories, or possessions of the United States, the Commonwealth of Puerto Rico, and the District of Columbia.” Richardson v. Richardson, 257 Ga. 101 (2) (355 SE2d 664) (1987); Binns v. Smith, 251 Ga. 861 (310 SE2d 225) (1984). Accordingly, the jurisdictional provisions of the UCCJA do not apply in the international arena so as to confer jurisdiction upon an international tribunal or limit the exercise of otherwise proper jurisdiction in Georgia because of “pending” international proceedings.

(b) Appellant’s arguments regarding a jurisdictional “conflict” between the Swiss District Court of Hinwil’s pending proceedings and the proceedings in Cobb County have been rendered moot by the Higher Court of the Canton of Zurich’s determination that the proceedings in Hinwil were unlawful and the finding that jurisdiction was proper in Cobb County. OCGA § 5-6-48 (b) (3).

2. Goldstein-Pfisterer is a resident of Switzerland and process was served in Switzerland. She contends that neither OCGA § 19-9-45 of the UCCJA nor the Georgia Long Arm Statute, OCGA § 9-10-91, provides authority for international service of process in Gold-stein’s contempt action so as to confer personal jurisdiction over her in Cobb County Superior Court.

Cobb County Superior Court had the authority to hear Mitchell Goldstein’s contempt action. Dyer v. Surratt, 266 Ga. 220, 221 (466 SE2d 584) (1996); Ashburn v. Baker, 256 Ga. 507, 509 (350 SE2d 437) (1986). However, the Cobb Superior Court’s judgments are not enforceable against Goldstein-Pfisterer unless the court has obtained personal jurisdiction over her. Id. In order for the Cobb Superior Court to bind Goldstein-Pfisterer to its judgments in personam, there must be (a) personal service or (b) a waiver of personal service upon her. Id. Herein, the Cobb County Superior Court obtained personal jurisdiction over Goldstein-Pfisterer in two ways:

(a) A “plaintiff, by voluntarily instituting . . . suit, gives the superior court of the county where it is so instituted jurisdiction of his person sufficient to answer all the ends of justice respecting the suit originally instituted, — such proceedings in equity being ancillary to or defensive of the pending suit.” Caswell v. Bunch, 77 Ga. 504 (a) (1886); Terhune v. Pettit, 195 Ga. 793 (25 SE2d 660) (1943); Ledford v. Bowers, 248 Ga. 804, 806 (286 SE2d 293) (1982). The Civil Practice Act has not changed this principle. Yount v. Mulle, 266 Ga. 729 (470 SE2d 647) (1996); Gaither v. Gaither, 206 Ga. 808 (58 SE2d 834) (1950).

The day after appellee Mitchell Goldstein instituted his two separate actions in Cobb County against appellant for (1) contempt of the custody provisions of the divorce decree and (2) modification of the custody provisions of the divorce decree, Goldstein v. Goldstein, Civil Action Nos. 96-1-6974 and 96-1-6975, appellant filed her own, separate complaint against appellee in Cobb County to modify the Cobb County custody decree through the domestication of the Swiss temporary custody order, Pfisterer v. Goldstein, Civil Action No. 96-1-6998-24. Because the litigants and the issues in all three cases were the same, the trial court, upon motion, consolidated the actions. See OCGA § 9-11-42 (a). The trial court heard the claims together.

Appellant’s general appearance in an original suit and her submission therein to Cobb County jurisdiction waived all defenses in abatement under OCGA § 9-11-12 (b) (2), (3), (4), (5), and (7). Compare Ashburn v. Baker, supra at 509. Appellant voluntarily submitted herself to the jurisdiction of the trial court for the purposes of the litigation of all issues legitimately raised in law or equity by her attempt to modify the original Cobb County custody order through the domestication of the Swiss temporary custody order. This litigation included the substance of appellee’s claims regarding the Cobb County custody order. Mitchell Goldstein is allowed to assert such affirmative relief against appellant as is related to the defense against appellant’s complaint. Global Fibers v. Foster, 207 Ga. App. 1, 2 (427 SE2d 3) (1992); Faulk v. Latham, 194 Ga. App. 522 (391 SE2d 7) (1990).

Appellant cannot personally invoke the jurisdiction of the Cobb County Superior Court with regard to her custody complaint and then deny the same court’s jurisdiction over her person with regard to appellee’s custody complaint when (1) the parties, (2) the subject matter of the claims (custody), and (3) the venue required by statute (Cobb County) are the same for all. Yount v. Mulle, supra; see generally Buckholts v. Buckholts, 251 Ga. 58 (302 SE2d 676) (1983). The ends of justice would be ill served by such a “now you see me, now you don’t” approach to in personam jurisdiction, which leaves one party legally at the mercy of another.

(b) Goldstein-Pfisterer was personally served process in Switzerland following the specific international service provisions of the Hague Conventions, so as to confer in personam jurisdiction on the Cobb County Superior Court. Camp v. Sellers & Co., 158 Ga. App. 646, 647 (2) (281 SE2d 621) (1981). This has been pled and proved from the inception of this case. Goldstein-Pfisterer signed for and admits such service. The Hague Conventions are binding in Georgia (as in all states) under the Supremacy Clause of the United States Constitution. “[A]ll Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U. S. Const., Art. VI, Par. 2. We have previously held that “judicial notice must be taken of a treaty and ... it will predominate over any statutory provision [or lack thereof] of the State of Georgia.” (Emphasis supplied.) Camp v. Sellers, supra at 648. The Hague Conventions provide the authority, as well as the method, for service of process internationally. Id.

As it is undisputed by any party that the international service provisions of the Hague Conventions were followed with regard to service of process on both of Mitchell Goldstein’s Cobb County actions, service on appellant was perfected so as to confer in per-sonam jurisdiction over her in the Superior Court of Cobb County as to both of those actions.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., and Ruffin, J, concur. Andrews, C. J., and Smith, J., concur in the judgment only. Beasley, J., concurs in part and dissents in part.

Beasley, Judge,

concurring in part and dissenting in part.

1. I concur in Division 1 insofar as it concludes that the trial court had subject matter jurisdiction of the custody and contempt actions.

2. I dissent with respect to Division 2 because (a) no consolidation took place, (b) no Georgia statute authorized service of process on the mother in Switzerland, and (c) the mother did not waive personal jurisdiction.

(a) On November 5 the father moved to consolidate all three actions (contempt, custody, and domestication), but the mother did not consent and no consolidation was ordered. OCGA § 9-11-42 (a) requires consent, as was emphasized in Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226, 228-229 (476 SE2d 565) (1996). Thus the trial court could not have consolidated, and did not consolidate, the custody and contempt actions with the domestication action when it heard the father’s two actions on November 25.

(b) The mother’s second enumeration of error has merit. She asserts the court lacked personal jurisdiction over her in both the contempt and custody actions.

“While the Georgia court may have the authority to hear the contempt [and custody actions], its judgment is not enforceable against the non-resident defendant unless the court has obtained personal jurisdiction over the non-resident. [Cit.]” Dyer v. Surratt, 266 Ga. 220, 221 (3) (466 SE2d 584) (1996). The defendant has the burden of proving lack of personal jurisdiction. Beasley v. Beasley, 260 Ga. 419, 420 (396 SE2d 222) (1990); Millard v. Millard, 204 Ga. App. 399, 401 (1) (419 SE2d 718) (1992). Both parties agree, and the court found, that at the time of the filing of the contempt and custody actions the mother was a resident of Switzerland. Process in both actions was served in Switzerland, not Georgia.

“The courts of this state have no extra-territorial jurisdiction, and cannot make the citizens of foreign states amenable to their process, or conclude them by a judgment in personam, without their consent.” (Citations and punctuation omitted.) Ashburn v. Baker, 256 Ga. 507, 509 (2) (350 SE2d 437) (1986). There are three prerequisites for a court to have personal jurisdiction over a non-consenting, nonresident defendant: a Georgia statute must authorize the court to exercise personal jurisdiction over the defendant; a Georgia statute must authorize extra-territorial service of process on the defendant; and the defendant must have sufficient minimum contacts to Georgia to meet the test of Intl. Shoe Co. v. Washington, 326 U. S. 310 (66 SC 154, 90 LE 95) (1945). See generally Straus v. Straus, 260 Ga. 327, 328-329 (2) (393 SE2d 248) (1990), overruled on other grounds, Scruggs v. Dept. of Human Resources, 261 Ga. 587 (408 SE2d 103) (1991). The contempt and custody actions must be analyzed separately. See Kemp v. Sharp, 261 Ga. 600 (409 SE2d 204) (1991); Ruck-stuhl v. Corley, 218 Ga. App. 660 (462 SE2d 795) (1995). Although OCGA § 9-10-91 (5) applies to certain financial aspects of divorce proceedings, “[i]t is a well-settled matter that the 1983 ‘domestic relations’ amendment to the Long-Arm Statute (OCGA § 9-10-91 (5)) does not provide a means by which a Georgia court may obtain personal jurisdiction over a non-resident in a proceeding involving child custody or visitation. [Cits.]” Dyer, supra at 221 (3). This includes actions to modify a child custody order.

The Long-Arm Statute also provides no personal jurisdiction over defendants in contempt proceedings relating to child custody. “[Ajlthough the superior court rendering a decree in a divorce action retains exclusive jurisdiction to enforce the provisions therein relating to custody of the minor children of the parties by attachment for contempt, even where subsequent to the rendition of the order the party sought to be adjudged in contempt has removed his or her residence to another jurisdiction, nevertheless, in order for the court to bind nonresidents by its judgments in personam there must be personal service or waiver of personal service upon such nonresidents.” (Citations and punctuation omitted; emphasis in original.) Ashburn v. Baker, supra at 509 (2). This personal service must be in Georgia. Id.; see Dyer, supra at 222 (3) (“Because of the limited nature of Georgia’s domestic relations long-arm statute, a non-resident parent alleged to be in contempt of the visitation provisions of a Georgia divorce judgment and who was served outside Georgia may divest the court of its power to enforce its judgment by timely asserting a defense of lack of personal jurisdiction”); Ruckstuhl v. Corley, supra at 660-661 (long-arm statute provides no personal jurisdiction in action for contempt of divorce decree).

On the other hand, OCGA § 19-9-43 of the UCC JA, as judicially construed, provides for personal jurisdiction over non-resident parents in petitions to modify custody and in contempt actions to enforce child custody orders where the provisions of that statute are met. Lee v. Pace, 252 Ga. 546, 547 (1) (315 SE2d 417) (1984) (“Jurisdiction over [the non-resident parent] as to custody is present because of the presence of the child within the jurisdiction. OCGA § 19-9-43”); Ashburn, supra at 508-510 (2) (court may have personal jurisdiction over nonresident parent in contempt action to enforce custody decree if UCCJA provisions met); Baker v. Ashburn, 179 Ga. App. 757, 758-759 (347 SE2d 660) (1986) (personal jurisdiction over non-resident parent may exist in custody modification action if UCCJA provisions met), aff’d, Ashburn v. Baker, supra; Paul v. Paul, 184 Ga. App. 217, 218 (361 SE2d 221) (1987) (in contempt action to enforce visitation rights in custody decree “jurisdiction and service over the [nonresident parent] were proper under the provisions of the [UCCJA]”).

The relevant provision of the UCCJA provides that a Georgia court has jurisdiction to modify or enforce its custody decree where (a) Georgia had been the child’s home state within six months before commencement of the proceeding, (b) the child is absent from Georgia because of its removal by a parent, and (c) a parent continues to live in Georgia. OCGA § 19-9-43 (a) (1) (B). When the contempt and custody actions were filed on September 16, 1996, these criteria were met. Until September 5, 1996, Georgia had been the child’s home state. The child was absent because of the mother’s unlawfully removing the child to Switzerland. And the father continued to live in Georgia. Thus, the UCCJA authorized the court to exercise personal jurisdiction over the non-resident mother in both the contempt and custody actions.

But no Georgia statute authorized the service of process on the mother in Switzerland. OCGA § 9-10-94, which authorizes service on non-residents of foreign countries, applies only to persons “subject to the jurisdiction of the courts of the state under Code Section 9-10-91.” As discussed above, OCGA § 9-10-91 does not provide for personal jurisdiction over non-resident defendants in custody and related contempt actions. Camp v. Sellers & Co., 158 Ga. App. 646 (281 SE2d 621) (1981), which speaks of service in a foreign country, is a tort action under the predecessor to OCGA § 9-10-91 (see Ga. L. 1970, pp. 443-445, § 1) in which the defendant challenged the method, not the authority for extra-territorial service in a foreign nation. The authority for international service in Camp came from OCGA § 9-10-94. Accordingly, Camp properly referred to a treaty between the United States and several foreign countries that speaks to the method of foreign service if foreign service is authorized; Camp does not hold, nor could it, that the treaty gives a party in a Georgia action the authority to serve process in a foreign country. For Georgia state courts, that is a matter exclusively within the province of the Georgia legislature.

Decided December 5, 1997

Reconsideration denied December 17, 1997

Jesus A. Nerio, for appellant.

Richard L. Moore, Rebecca S. Walton-McFalls, for appellee.

The Supreme Court rejected a judicial rectification of the void in Binns v. Smith, 251 Ga. 861 (310 SE2d 225) (1984). The dissent in that case decried the safe haven created by the majority’s recognition that the power to confer jurisdiction and to establish methods of achieving jurisdiction lies in the legislative and not in the judicial branch. Nor can a Swiss court confer jurisdiction on a Georgia court by its decrees.

We are left only with the extra-territorial service provision (OCGA § 19-9-45) of the UCCJA, which allows service of process on parents located in another state of the United States, Paul, supra at 218, but not in foreign nations. Binns, supra (no service allowed on parent in Canada); Richardson v. Richardson, 257 Ga. 101 (355 SE2d 664) (1987) (no service allowed on parent in Germany). Service on the mother in Switzerland was invalid, so the court lacked personal jurisdiction over her.

(c) Although not argued by the father on appeal, the majority finds the mother waived personal jurisdiction by filing the action to domesticate the Swiss decree of September 6. Filing an action in Georgia could be a factor to establish the minimum contacts required by Intl. Shoe Co., supra, but does not constitute a waiver of the defense of lack of personal jurisdiction in other Georgia actions. See Fralix v. Cordle, 261 Ga. 224 (403 SE2d 793) (1991) (filing garnishment actions is evidence of minimum contacts); Straus v. Straus, supra at 328-329 (filing contempt action to enforce payment of alimony and child support is evidence of minimum contacts), overruled on other grounds, Scruggs v. Dept. of Human Resources, supra at 587. Cf. Kemp v. Sharp, supra at 601-602 (3) (filing counterclaim in UCCJA action does not constitute waiver of personal jurisdiction). But minimum contacts need not be addressed, for service in Switzerland was invalid and the mother did not waive the defense. See Millard v. Millard, supra at 403 (2).

       Appellant married Andreas Pfisterer, a Swiss national, on August 28,1996.

       The Swiss district court, following a subsequent hearing in which Goldstein was present, rejected Goldstein’s plea to have the child returned. This ruling was appealed by Gold-stein, and the Higher Court of the Canton of Zurich reversed the district court’s ruling, finding that jurisdiction over the custody matter was proper only in Cobb County, Georgia. The higher Swiss court ordered appellant to return the child to Cobb County for a “restoration of the status quo ante” and in order to “leave it up to the judge at the location of the hitherto usual residence to decide about the custody.” The record does not show that this has occurred.

       OCGA § 19-9-63 states “[t]he general policies of [the UCCJA] extend to the international area.” This refers to comity in the recognition and enforcement of an international custody decree which has been domesticated and does not address international proceedings. Moreover, no such international custody decree is before this Court in this appeal.

       Appellant does not enumerate as error the consolidation of the actions.

       Appellant filed a complaint for domestication, which is subject to answer and defenses. Okekpe v. Commerce Funding Corp., 218 Ga. App. 705, 707-708 (463 SE2d 23) (1995) (Beasley, C. J., concurring specially).

        Camp v. Sellers, supra, involved the same international service provision of the Hague Conventions as does the instant case: Service Abroad of Judicial & Extrajudicial Documents, 1969 WL 22798 (TIA) (each contracting nation shall proceed in conformity with the provisions of Articles 3 to 6).

       Convention on the Service Abroad of Judicial & Extrajudicial Documents, Vol. 20 Part 1, U. S. Treaties & Other International Agreements 1969 (20 UST 361, TIAS 6638).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A1322.
    BAILEY v. THE STATE.
    (494 SE2d 672)
   Eldridge, Judge.

On November 8, 1996, in Sumter County, Paula Bailey, appellant, was stopped by State Trooper Mike Gurley for doing 87 mph in a 55 mph zone. After Trooper Gurley had filled out the citation for speeding and given it to appellant, he noted that her speech was slurred and believed that he detected the odor of alcohol on her breath.

Appellant was requested to step out of the car. The stop was videotaped by a camera in the patrol car; however, the day was windy so that the oral responses could not be picked up by the video camera microphone. Further, the wind could distort any leg raise, straight line, or balance tests in a field sobriety battery of tests, so the Trooper did not administer any of the tests. Instead, the Trooper asked appellant to submit to an alcosensor test. When appellant twice registered positive for the presence of alcohol on the alcosensor test, appellant was placed under arrest for driving under the influence of alcohol to the extent that it was less safe to drive, under OCGA § 40-6-391 (a) (1). Immediately upon the arrest of appellant, Trooper Gurley read to appellant her implied consent warnings and told her that she would have to have a blood sample taken; reluctantly she consented. Appellant was transported to the Sumter County Hospital for a blood-alcohol test. The blood sample was drawn by Jody Cromer, an LPN, who routinely drew blood both for medical procedures, as well as for alcohol determinations, as a part of her work as an LPN. The evidence showed that the blood sample was taken in the standard fashion.

Appellant wanted a breath test performed. At about 3:00 p.m., after providing the blood sample, appellant was taken to the Sumter County Sheriff’s Office for the breath test; two successful breath tests were run showing .112 and .106 mg./deciliter of blood. The appellant did not seek to place such results into evidence.

Toxicologist Michelle Basham-Foster received B.A. and M.A. degrees in chemistry in 1984; had worked from 1988 until 1990 for the Armed Forces Institute of Pathology in Washington, D. C., making alcohol determinations with gas chromatography; and had been employed by the State Crime Laboratory as a toxicologist since 1990. While she had certificates from the crime laboratory to perform such tests, she did not bring such permits to court. She testified that the gas chromatography equipment that she used at the State Crime Laboratory had been approved by the Crime Laboratory Director, but that she did not have the certificate if one was, in fact, issued. On November 19, 1996, Ms. Basham-Foster retrieved appellant’s sealed blood sample and performed one gas chromatography test on the sample, along with a standard; appellant’s blood sample showed .13 mg. of alcohol/per deciliter of blood.

Both Trooper Gurley and toxicologist Basham-Foster testified that .13 mg./deciliter was a sufficiently high concentration so as to render an individual less safe to operate a motor vehicle. Trooper Gurley testified that driving 87 mph in a 55 mph zone, as well as the physical manifestations, positive alcosensor tests, and .13 blood alcohol level would, in his opinion, render appellant less safe to operate a motor vehicle.

Appellant made a motion to suppress and a motion in limine as to the blood test on the basis that OCGA § 40-6-392 had not been complied with; there was no showing of certification by the State Crime Laboratory to perform the test. Both motions were denied.

On January 27, 1997, appellant pled guilty to speeding, but entered a not guilty plea to the DUI charge. Appellant was tried by a jury, which convicted her on January 28, 1997. Notice of appeal was filed January 29, 1997.

1. Appellant’s first enumeration of error is that the trial court failed to suppress the blood test results when the State failed to show compliance with OCGA § 40-6-392 (a) (1) (A), both in the certification of the laboratory procedure and as to the permitting of the technician who performed the analysis. We do not agree.

OCGA § 40-6-392 (a) (1) (A) has been satisfied when there is compliance with Chapter 92-3 of the Rules of the Georgia Bureau of Investigation: Rule 92-3-.06 (7) provides that “[a]ll blood tests will be performed by the Division of Forensic Sciences, or by an individual authorized in accordance with Rule 92-3-.02 (1) of these regulations.” In the case sub judice, the person who conducted the blood testing was a forensic chemist, in the employ of the Division of Forensic Sciences (State Crime Lab) since 1990, and performed the test under the approved procedure using State Crime Laboratory equipment. “Thus we find that the method used to test the blood was approved by the Division of Forensic Sciences. Furthermore, the legislature’s delegation of complete authority to the Division of Forensic Sciences to regulate blood testing and permitting, including the authority to ‘approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses’ authorizes the division to determine the competence of its own personnel to conduct such an analysis. Under such circumstances, we do not believe the legislature intended to require the Division of Forensic Sciences, as the permit issuing authority, to issue a permit to itself. Accordingly, we also find the Division of Forensic Sciences’ forensic chemist was authorized to conduct the test under OCGA § 40-6-392 (a) (1) and find no error in the admission of [her] testimony regarding the analysis performed on [appellant’s] blood samples.” Lewis v. State, 215 Ga. App. 486, 489 (2) (451 SE2d 116) (1994); see also Jordan v. State, 223 Ga. App. 176, 178-180 (2) (477 SE2d 583) (1996); Martin v. State, 214 Ga. App. 614, 617-618 (3) (448 SE2d 471) (1994).

The employees of the State Crime Laboratory, when performing their jobs in the State Crime Laboratory, do not have to prove that they have been permitted by the State Crime Laboratory to perform their jobs. If, in fact, such State Crime Laboratory employee has been permitted to perform lab tests approved by the State Crime Laboratory, then their testimony to such fact is sufficient, and the permit does not have to be placed in evidence. See Jordan v. State, supra at 178-180; Lewis v. State, supra at 489; Martin v. State, supra at 616.

If the State Crime Laboratory performed the test, then the testing procedure and equipment have been approved within the meaning of OCGA § 40-6-392 (a) (1) (A). Lewis v. State, supra at 488-489; see also Jordan v. State, supra at 179; Martin v. State, supra at 616. Both State v. Baker, 146 Ga. App. 608, 609 (247 SE2d 160) (1978) and Willoughby v. State, 153 Ga. App. 434, 435-436 (1) (265 SE2d 352) (1980), are distinguishable from the case sub judice both on the facts and law. In Baker, the breathalyzer test was performed by a police officer and the origin of the machine was unstated. Thus, compliance with Ga. L. 1974, pp. 633, 672 (now OCGA § 40-6-392) had not been shown, nor had it been shown that such procedures were approved by the State Crime Laboratory. In the case sub judice, the State Crime Laboratory’s own personnel performed the test with the State Crime Laboratory’s own equipment using the State Crime Laboratory’s standard procedures.

Further, the General Assembly delegated the selection of testing methods, procedures, equipment, and permitting of operators to the State Crime Laboratory so that when testing is done, by anyone other than the State Crime Laboratory itself, there will be uniformity of reliability, quality, performance, and skill, not only by the operators, but also as to the equipment, methods, and procedures. The holdings of Baker and Willoughby still apply to tests performed by anyone other than the State Crime Laboratory personnel, and require either proof of approval by regulations, or testimony that the equipment, methods, and procedures utilized have the approval of the State Crime Laboratory. See Corner v. State, 223 Ga. App. 353, 354 (477 SE2d 593) (1996); see also Cullen v. State, 223 Ga. App. 356 (477 SE2d 620) (1996); Stewart v. State, 165 Ga. App. 62, 63 (2), (3) (299 SE2d 134) (1983).

2. The second enumeration of error is that the verdict is contrary to the evidence and against the weight of the evidence. We do not agree.

The evidence showed that appellant had been speeding; that she had the odor of alcohol on her breath; that appellant admitted to drinking alcohol within the last 14 hours; and that, in the opinion of the arresting trooper, appellant was less safe to operate a motor vehicle than if she had not been drinking alcohol. There was further evidence of a positive alcosensor test and blood test results which showed that appellant, at the time of testing, had .13 mg. of alcohol/ deciliter of blood.

“On appeal we must view the evidence in the light most favorable to the verdict, [appellant] no longer enjoys the presumption of innocence, and we do not weigh the evidence nor judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.” (Citations and punctuation omitted.) Thompson v. State, 210 Ga. App. 655, 656 (436 SE2d 799) (1993); see also Ogletree v. State, 211 Ga. App. 845, 847 (440 SE2d 732) (1994). In the case sub judice, the evidence introduced at trial was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offense of DUI. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. The third enumeration of error is that the trial court erred in not allowing defense counsel to view the videotape of appellant’s stop and arrest.

Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) {“Brady”), controls what must be disclosed as a matter of due process, i.e., that which is either exculpatory of the crime or impeaching of any witness. Appellant contends that pursuant to Brady, she “was entitled to inspect and examine anything in the State’s possession which is or may be exculpatory.” This is an incorrect interpretation not only of Brady but also the Georgia decisions applying Brady.

The prosecution, upon a Brady motion, has the duty to produce anything that is exculpatory or impeaching. If the defense counsel has filed a discovery motion seeking Brady materials and the prosecution denies that any exculpatory or impeaching materials exist, then the defense counsel must move for the trial court to make an in camera inspection of the prosecutor’s file and must ask that the record be preserved by the trial court, requesting that the court order a sealed copy to be placed in the record for possible appellate review. Hicks v. State, 232 Ga. 393, 394 (207 SE2d 30) (1974); see also Hines v. State, 249 Ga. 257, 258-259 (1) (290 SE2d 911) (1982); Jenkins v. State, 215 Ga. App. 540, 543 (3) (451 SE2d 457) (1994); Stewart v. State, 210 Ga. App. 474, 475 (3) (436 SE2d 679) (1993); Broom v. State, 209 Ga. App. 42, 43 (432 SE2d 823) (1993); Boatright v. State, 192 Ga. App. 112, 113 (2) (385 SE2d 298) (1989); Hayes v. State, 168 Ga. App. 94, 95 (3) (308 SE2d 227) (1983); Holbrook v. State, 162 Ga. App. 400, 401 (291 SE2d 729) (1982). In the case sub judice, the appellant made such motion.

It does not appear that the trial court made an in camera inspection either of the prosecutor’s file or of the videotape of the stop and arrest of appellant. However, in her brief before this Court, appellant’s counsel makes an admission in judicio that after trial, defense counsel viewed the videotape; appellant does not assert that the videotape contained any Brady materials and asserts only that the untimely opportunity to view the tape was error under Brady. Absent a showing that the videotape was either exculpatory or impeaching, the videotape was not discoverable under Brady, so that denial of the motion by the trial judge was not error. Stewart v. State, 210 Ga. App. at 475. Had defense counsel made a motion for new trial, instead of filing a direct appeal, any Brady materials contained in the videotape that he saw after trial could have been set out in such special grounds in the motion for new trial, with his affidavit attached. Thus, the trial court could have developed a record and ruled.

Fundamental to any error based upon a violation of Brady is that appellant must prove that: (1) the state possessed evidence favorable to the defense, i.e., true Brady material; (2) the defense did not possess the evidence, nor could she obtain it herself with any reasonable diligence; (3) the prosecution suppressed the favorable evidence; (4) she was denied access to such evidence during trial; (5) the disclosure would have benefitted the defense by providing evidence for the defense or impeaching prior inconsistent statements; and (6) the denial deprived her of a fair trial, i.e., a reasonable probability exists that the outcome of the proceedings would have been different had disclosure been made. Burgeson v. State, 267 Ga. 102, 104 (2) (475 SE2d 580) (1996); Zant v. Moon, 264 Ga. 93, 100 (3) (440 SE2d 657) (1994); Dennard v. Dennard, 263 Ga. 453, 454-455 (4) (435 SE2d 26) (1993); Shearer v. State, 259 Ga. 51 (1) (376 SE2d 194) (1989); Wallin v. State, 248 Ga. 29, 32-34 (6) (279 SE2d 687) (1981).

In the case sub judice, where appellant had an opportunity after trial to examine the materials and no showing is made as outlined in steps 1 through 6 above, there is no violation of Brady. McNeal v. State, 263 Ga. 397, 398-399 (435 SE2d 47) (1993); Carpenter v. State, 252 Ga. 79 (2) (310 SE2d 912) (1984); Hill v. State, 250 Ga. 164 (2) (295 SE2d 838) (1982).

4. The fourth and final enumeration of error is that the trial court improperly gave a charge on expert witnesses. We do not agree.

The State Crime Laboratory technician, the licensed practical nurse, and the State Troopers all qualified as expert witnesses by their training, education, and experience. OCGA § 24-9-67; Brown v. State, 245 Ga. 588 (266 SE2d 198) (1980); Bowden v. State, 239 Ga. 821 (238 SE2d 905) (1977); Smith v. State, 127 Ga. 56 (56 SE 116) (1906); Robinson v. State, 203 Ga. App. 759, 761 (5) (417 SE2d 404) (1992); Evans v. State, 176 Ga. App. 818, 822 (3) (338 SE2d 48) (1985). The status of a witness, whether an expert or a layperson, does not go to admissibility of the testimony, but goes only to the weight and credibility of the witness. McLelland v. State, 203 Ga. App. 93 (416 SE2d 340) (1992). It is within the sound discretion of the trial court to determine if a witness is or is not an expert and to allow expert testimony to be given regarding matters of science. Lewis v. State, 214 Ga. App. 830, 832 (449 SE2d 535) (1994); Smith v. State, 210 Ga. App. 451, 452 (3) (436 SE2d 562) (1993). Such legal determination may be made outside the presence of the jury. When a witness is allowed to testify in the presence of the jury as an expert, the testimony itself indicates to the jury that this witness has been determined by the court to be an expert and allowed to give such expert testimony. Thus, there was no error in the court’s charge.

Decided June 9, 1997

Reconsideration denied December 17, 1997

Hagler, Hyles, Adams & McKenna, Clark C. Adams, Jr., for appellant.

Howard S. McKelvey, Jr., Solicitor, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: Judge Harold R. Banke.

text:
    A97A1821.
    McWHORTER v. THE STATE.
    (495 SE2d 139)
   Judge Harold R. Banke.

Marvis McWhorter was convicted of aggravated assault. He enumerates three errors on appeal.

This case arose during the course of a hot summer evening while the victim and some acquaintances “hung out” behind an apartment building, watching a dice game. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). McWhorter drove up and ordered one of the players to “leave everything on the ground.” He subsequently jumped out of the car holding a gun with a red laser light attached to it in his hand. After warning the victim not to “be putting his business in the street,” McWhorter pointed the gun at the victim’s head, shining the laser light on the victim’s face. At that point, the victim’s sister jumped in front of the gun and talked to McWhorter until he got back in his car and left. Held:

1. McWhorter claims the trial court’s interpretation of OCGA § 17-16-4 requires reversal. In a conversation with the arresting officer before McWhorter testified, defense counsel learned of the existence of a number of police reports, including McWhorter’s in-custody statement, which the State had not previously provided her, although her client had “opted in” under OCGA § 17-16-2. She convinced the officer to allow her to copy the material. After learning of this, the prosecutor claimed that he had not obtained this material either and successfully asked the court to require McWhorter to provide the State with it. McWhorter claims, inter alia, that requiring him to provide this material offended due process and his rights to effective assistance of counsel and against self-incrimination.

Pretermitting McWhorter’s arguments, because McWhorter had opted in to the reciprocal discovery provisions and the State in effect already had the material in its possession or certainly could have obtained the materials from the officer just as McWhorter did, we fail to see how he was harmed by this ruling. See Johnson v. State, 194 Ga. App. 501, 502 (3) (391 SE2d 132) (1990). Nor does the record reveal that McWhorter raised his constitutional arguments in the trial court. Allen v. State, 224 Ga. App. 324, 326 (5) (480 SE2d 328) (1997).

2. McWhorter claims reversal is required because the trial court permitted the State to use McWhorter’s in-custody statements at trial in violation of the reciprocal discovery statute. OCGA § 17-16-4 (a) (1) required the State to provide McWhorter “any relevant written or recorded statements made by the defendant.” We decline to absolve the State from its responsibility to comply with this provision when the statement was known to the arresting officer and the record discloses no reason why it was not made available to the State’s attorney prior to trial. See Moon v. State, 208 Ga. App. 540, 541 (1) (b) (431 SE2d 128) (1993).

However, the testimony of the victim and his sister that an angry McWhorter pointed a gun at the victim’s head, rendered the error harmless. Id. at 542 (1). The evidence of aggravated assault was more than sufficient to satisfy Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979).

Moreover, OCGA § 17-16-6 provides a number of alternative remedies for failure to comply with the discovery requirements, including simply ordering the State to permit the discovery. Because the court was authorized to remedy this matter by requiring disclosure and McWhorter obtained the statement before the State and has not alleged bad faith or made a showing of prejudice, we decline to find that the trial court abused its discretion by allowing the State to use McWhorter’s statement. See Bell v. State, 224 Ga. App. 191, 192 (480 SE2d 241) (1996). Nor has McWhorter demonstrated how the State’s violation of OCGA § 17-16-4 (a) harmed him.

3. McWhorter raises several arguments challenging the trial court’s admission of the testimony recounting his out-of-court statements. The impeaching testimony was provided in rebuttal by the detective who took McWhorter’s statement.

First, McWhorter argues that the State failed to show compliance with Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Insofar as the statement was introduced in rebuttal, after McWhorter denied making certain statements about participants in the game, and he has not challenged the jury instruction on the use of this testimony, this ground does not require reversal. Byars v. State, 198 Ga. App. 793, 794 (2) (403 SE2d 82) (1991); see Brown v. State, 226 Ga. App. 140, 141 (486 SE2d 370) (1997).

McWhorter further maintains that the State failed to show, over objection, that his statement was voluntary. The State’s use of an involuntary statement for any purpose violates due process. Fain v. State, 165 Ga. App. 188, 190 (6) (300 SE2d 197) (1983). Once McWhorter raised the issue of involuntariness, he was entitled to a determination on that matter by the trial court before the statement could properly be used (but not a separate hearing under Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964)). Fain, 165 Ga. App. at 190 (6). The trial court made no such determination on the voluntariness of the statement. Nor are we persuaded by the State’s contention that the arresting and investigating officers’ statements on the issue satisfy that requirement. Accordingly, we must remand for such a determination. Id. Should the trial court find the statement was not voluntary, a new trial is required. Id.

McWhorter argues that the State failed to establish a basis for impeachment because he testified that he did not recall talking to the investigator who took his in-custody statement. Although McWhor-ter said he did not recall talking to the investigator, the record shows that he also specifically denied making the statements used to impeach him. Moreover, this issue does not appear to have been raised at trial. Allen, 224 Ga. App. at 326 (5). Nor was McWhorter’s contention that the State failed to follow OCGA § 24-9-82 with sufficient particularity. Id.

Finally, McWhorter argues that the law enforcement officer’s testimony regarding several specific in-custody statements he made was beyond the scope of impeachment. However, the record shows that the State asked McWhorter about these statements. McWhorter specifically denied saying that (1) he was “rolling dice with the punk mother f.....rs behind the building”; (2) “that punk ‘Nard didn’t want to put no money down”; and (3) “that ‘Nard was a m r f....r.” He also denied that anyone was in the car with him. We fail to see how introduction of the prior in-custody statements directly contradicting these assertions went beyond the scope of impeachment.

Decided December 17, 1997.

Rosemary M. Hathaway, for appellant.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

Case remanded for further proceedings.

Ruffin and Eldridge, JJ., concur.

       The testimony pertaining to the number of times McWhorter came and left the area during this time is conflicting.

       McWhorter’s claim that he might have chosen not to testify but for the late receipt of the statement is undermined by defense counsel’s comment at trial that she obtained the documents on the morning of trial (and certainly before McWhorter took the stand). She stated she had forgotten whether she had opted into the reciprocal discovery plan and therefore was not upset she had not received them sooner. It follows that she was operating at that time under the assumption that the State possessed the in-custody statement, a fact which subverts any claim of unfair surprise caused by the State’s use of McWhorter’s statement in rebuttal. See Bertholf v. State, 224 Ga. App. 831, 832 (1) (482 SE2d 469) (1997).


author: Smith, Judge.

text:
    A97A0964.
    CAREAMERICA, INC. et al. v. SOUTHERN CARE CORPORATION.
    (494 SE2d 720)
   Smith, Judge.

This appeal involves a dispute between the seller and purchaser of nursing homes. Several documents evidence complex transactions among the seller, the purchaser, and various financing institutions and governmental bodies involved in the transactions. We must decide whether certain provisions in those documents are ambiguous and should be construed to reflect the intent of the parties, or are clear and unambiguous and therefore require no construction. The trial court ruled that the documents are not ambiguous and granted summary judgment to the purchaser on that basis. We conclude that the provisions of at least one of the documents may be interpreted in more than one way, and that a construction that reflects the intention of the parties requires reversal of the judgment below.

In December 1991, Southern Care Corporation, a Texas corporation licensed to do business in Georgia, purchased four nursing homes in Georgia from Medical Resource Companies of America (“MRC”) for the total purchase price of $16,122,000. Four development authorities in Georgia issued three series of revenue bonds (A, B, and C) to finance the acquisition. Pursuant to loan agreements covering the transaction, Southern Care borrowed the proceeds from the sale of the bonds and executed promissory notes and deeds to secure debt in favor of the issuers.

MRC took the bonds in exchange for the nursing homes it sold to Southern Care, and the notes, deeds to secure debt, loan agreements, and other relevant documents were assigned by the bond issuers to Reliance Trust Company as trustee for the bondholders. The trustee’s rights and duties were set forth in a trust indenture. Southern Care was to make payments on the notes to the trustee as required by the loan agreements, and the trustee was to disburse payments to MRC. In connection with the purchase, Southern Care entered into a contract with CareAmerica, Inc., a related corporation to MRC, to manage the nursing homes.

In March 1992, in anticipation of remarketing one series of bonds, the C bonds, in accordance with Article X of the trust indenture MRC purchased U. S. Treasury STRIPS in sufficient amount to pay the debt service and principal on that series of bonds and deposited the Treasury STRIPS with the trustee. The effect of this deposit was to “defease” that bond issue by substituting the U. S. Treasury STRIPS for the C notes and security deeds previously held as collateral, severing the connection between the C bonds and the C notes and deeds to secure debt, and discharging the lien on the notes and security deeds. The trustee then assigned these notes and security deeds to MRC.

Southern Care assented to the assignment and executed the assignment documents. After the assignment, Southern Care continued to make payments on the notes. Several years later, however, Southern Care decided it was no longer obligated on the C notes, and when MRC insisted that the obligation remained, Southern Care filed separate actions against MRC and its principals and against CareAmerica. In the suit against MRC, Southern Care sought a declaration that it was no longer obligated on the C notes by virtue of the bond defeasance transaction, and it asserted claims for money had and received and conversion, seeking recovery of the funds paid to MRC after the defeasance transaction. Cross-motions for partial summary judgment were filed on the issue of the declaratory relief, and the trial court granted Southern Care’s motion and denied that of MRC. This appeal was taken by MRC from that order.

The C notes contained the following language: “If the amount held by the trustee in the series 1991C account of the bond fund shall be sufficient to pay at the times required the accreted principal amount of the series 1991C bonds then remaining unpaid, as provided in the indenture, the company [Southern Care] shall not be obligated to make any further payments under this series 1991C note.”

1. MRC asserts that the trial court erred in granting Southern Care’s motion for summary judgment. Southern Care contended below that this language in the note was clear and unambiguous and required no construction. Southern Care argued that because MRC’s deposit of the Treasury STRIPS caused the amount held by the trustee to be sufficient to pay the outstanding principal of the C bonds, under the clear language in the note Southern Care was not obligated to make any further payments on these bonds. Considering only the note, it is difficult to disagree with this conclusion.

In this case, however, the note cannot be viewed in isolation; all the documents must be considered, including the later assignment, because they are obviously interrelated. The assignment contained the following language: “The parties acknowledge that only the note, the third deed of trust and the related financing statements are hereby assigned from the trustee to MRC, and that such documents are distinct and separate from any other documents executed by the corporation or held by the trustee. In conjunction with this assignment, and pursuant to Article X of the indenture, the trustee has accepted substitute collateral for the security of the . . . [series C bonds]. Therefore, the note and the third deed to secure debt no longer secure repayment of the bonds, and the note and the third deed to secure debt now represent the independent obligations of the corporation [Southern Care] to MRC.” The trial court did consider the quoted language in the assignment but concluded that this language did not conflict with the language in the note or create an ambiguity. We agree with MRC that this was error.

The construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract , alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. Century 21 Pinetree Properties v. Cason, 220 Ga. App. 355, 358 (2) (d) (469 SE2d 458) (1996).

Because the trial court determined that no document in issue was ambiguous, the second and third steps were never reached. The trial court reasoned that the assignment language was unambiguous and the language in the assignment making the notes the “independent obligations” of Southern Care to MRC merely “reflected] that if the substitute collateral becomes insufficient to satisfy the accreted principal amount under the agreement as it came due, then plaintiff [Southern Care] would be obligated to make payments under the note, as the bond would no longer be defeased as defined under Article X of the trust indenture.” But the language in issue does not state that; and if we must resort to construction to decide its meaning, it cannot be clear and unambiguous. We agree that it could be so construed. But it could also be construed differently. It could mean that because the notes and security deeds no longer were tied to the bonds, Southern Care had no further obligation to the trustee but an “independent” obligation under the notes to the new assignee, MRC.

The language could reasonably be construed both ways, and it therefore cannot be deemed unambiguous; the intention of the parties simply is not clear from the contract language alone. Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (2) (381 SE2d 322) (1989) (ambiguity exists when meaning uncertain and language may be fairly understood in more than one way). We must proceed with the next step in the contract construction process. We therefore look to the applicable rules of contract construction, bearing in mind that “[t]he cardinal rule of construction is to ascertain the intention of the parties.” OCGA § 13-2-3.

“If the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred.” OCGA § 13-2-2 (5). In the present case both parties executed the assignment, but Southern Care was the party that executed the notes and undertook the obligation, referenced in the assignment, to pay them. The interpretation that does not relieve Southern Care of that obligation is therefore the one to be preferred. See generally Promenade Assoc. v. Finish Line, 194 Ga. App. 741, 742-743 (391 SE2d 714) (1990).

Further, although parol evidence is generally not admissible “to add to, take from, or vary a written contract,” because the language of the provision in issue is not clear, we may consider “[a]ll the attendant and surrounding circumstances” to explain the ambiguity. OCGA § 13-2-2 (1). In this case, Southern Care confirmed its obligation to pay the C notes several times after the defeasement transaction, thereby confirming that the intention of the parties was not to cancel Southern Care’s debt on those notes. In fact, Southern Care had discussions with its accountants regarding how to avoid payments on these notes, thus indicating its understanding of a continuing obligation.

In addition, MRC proffered the affidavit and deposition testimony of John Konvalinka, which the trial court did not consider in ruling on the motions because it believed the documents were unambiguous. Konvalinka served as bond counsel for the defeasement transaction. His affidavit and deposition contain strong, impartial evidence that it was the intention of the parties that Southern Care’s obligation on the C notes continued, with payment required to MRC instead of to the trustee. He testified that “[a]t no time during the drafting of documents or discussions with any of the parties was any agreement to terminate the 1991C notes ever mentioned. To the contrary, at all times during the transaction, the manifested intent of the parties was to effect the purchase of the 1991C notes from the trustee by [MRC] which purchase would provide sufficient monies to defease the 1991C bonds.” He testified that some discussion was had regarding the possibility of amending the C notes to reflect the change but this was rejected because it was believed that such an amendment executed shortly after the defeasance might have affected adversely the tax-exempt status of the bonds. According to Konvalinka, obtaining Southern Care’s acknowledgment in the assignment agreement that MRC was not a successor trustee and that the C notes were now “independent obligations” of Southern Care was intended “to evidence the obligation of Southern Care Corporation to continue to make the payments provided in the 1991C notes that survived the defeasance of the 1991C bonds. We obtained an opinion of counsel to Southern Care Corporation with respect to each of the issues of 1991C bonds to the effect that the assignment was duly authorized and constituted legal, valid and binding obligations of Southern Care Corporation enforceable in accordance with its terms.”

This evidence showing the circumstances surrounding the defea-sance and assignment persuades us that in those transactions the parties intended simply that MRC would “purchase” the notes and sever the connection between the C bonds and the C notes by substituting higher grade collateral for the bonds so that it could market the bonds at a profit. The parties intended for MRC to be substituted for the trustee as the obligee of the notes and for Southern Care’s obligation to continue as before except as to the identity of the obli-gee. Because this intention of the parties is clear when the rules of contract construction are applied, the trial court erred in granting Southern Care’s motion for partial summary judgment on the declaratory judgment claim.

Decided December 3, 1997

Reconsideration denied December 18, 1997

Sutherland, Asbill & Brennan, Ann G. Fort, Sarah B. Estes, Peter J. Anderson, Kilpatrick Stockton, Susan A. Cahoon, for appellants.

Bouhan, Williams & Levy, Roy E. Paul, for appellee.

2. For the reasons discussed above, the trial court also erred in denying MRC’s motion for summary judgment on the declaratory judgment claim.

3. To the extent that the trial court’s order may be read as at least impliedly also granting partial summary judgment to Southern Care on its claims for money had and received and for conversion, any such grant must also be reversed. No unjust enrichment or conversion took place because any payments made on Southern Care’s obligations under the C notes were properly made and properly received by MRC.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.

       STRIPS (separate trading of registered interest and principal of securities) are zero coupon securities issued by the U. S. Treasury under a program established in 1985. They are offered at a substantial discount from face value. No interest is paid during the lifetime of the security, but the full face amount is paid at maturity.

       The CareAmerica action is not involved in this appeal.

       The deeds to secure debt were of third priority, subordinate to those covering the notes on the A and B series bonds.

       Contrary to Southern Care’s protestations regarding the timeliness of the Konvalinka affidavit, because cross-motions for summary judgment were filed and heard, MRC was the respondent to and was opposing Southern Care’s motion for summary judgment. OCGA § 9-11-6 (d) would therefore permit affidavits to be filed until the day before the hearing on a motion. OCGA § 9-11-56 (c) specifically so states.


author: Judge Harold R. Banke. Eldridge, Judge, Birdsong, Presiding Judge,

text:
    A97A1215.
    SINKFIELD v. OH et al.
    (495 SE2d 94)
   Judge Harold R. Banke.

Lorrie Marie Sinkfield sued Shi-Han Oh, M.D., and Gerry Farmer, M.D., her treating obstetricians, after she suffered a miscarriage. Sinkfield challenges the summary judgment in favor of the defendant doctors.

Viewed in the light most favorable to Sinkfield, the non-movant, the evidence was as follows. Sinkfield began treatment with Drs. Oh and Farmer in late November 1992. From the time of her initial visit until the miscarriage on January 19, 1993, Sinkfield at various points complained of amniotic fluid leakage, vaginal bleeding, and abdominal and back pain. Before this pregnancy, she had experienced two prior miscarriages. In the latter part of December, Sinkfield’s heavy bleeding and severe abdominal pain necessitated her hospitalization. On her release date of December 24, Dr. Farmer prescribed Motrin 800 for pain and lifted the total bed rest restriction prescribed by Dr. Oh. Sinkfield subsequently returned to work. On January 19, Sinkfield suffered a miscarriage, delivering a male fetus with a gestational age of 20 to 22 weeks. In the underlying action, she alleged that Drs. Oh and Farmer failed to properly diagnose her medical condition as a high risk pregnancy and failed to provide appropriate medical treatment.

Sinkfield’s expert, Verna A. Thornton, M.D., enumerated several deviations from proper care by her treating physicians including: failure to place Sinkfield on a contraction or fetal monitor, failure to prescribe any medication to stop premature contractions, negligently dismissing her from the hospital, failure to perform tests for fetal heart tones, failure to restrict her to complete bed rest with prescribed medicine, failure to test for leaking amniotic fluid and a deviation from the applicable standard of care by prescribing Motrin 800. On deposition, Dr. Thornton attested that prescribing Motrin was inappropriate because one of its side effects is a reduction of amniotic fluid. Five days before her physician prescribed Motrin, an ultrasound test indicated a normal amount of amniotic fluid. When Sinkfield delivered the stillborn fetus a month later, no amniotic fluid was present.

On summary judgment, the defendant physicians contended that even assuming arguendo that they had failed to provide appropriate care and treatment for Sinkfield’s medical condition, Sinkfield failed to offer any evidence showing that their acts or omissions caused her miscarriage. In response, Sinkfield submitted the affidavit of Charles Proctor, Ph.D., a pharmacologist and toxicologist. Dr. Proctor claimed to have expert knowledge of the effects of dosages of Motrin on pregnant women and their fetuses at various stages of pregnancy. Dr. Proctor testified that it was his professional opinion that “the Motrin-800 (ibuprofen, 800 milligrams) prescribed by Dr. Gerry Farmer on December 24, 1992 was the predominate major contributing factor to the demise of the fetus of Lorrie Marie Sinkfield.” According to Dr. Proctor, the fetus’ demise “was precipitated by Motrin-800 (ibuprofen, 800 milligrams) induced Oligohydramnios (deficit in amniotic fluid).”

Finding that Dr. Proctor was not a medical doctor, the trial court rejected Dr. Proctor’s testimony as “incompetent.” The court held that because Sinkfield failed to establish by competent evidence that any breach of the applicable standard of care by the physicians caused or contributed to her injury, the physicians were entitled to summary judgment as a matter of law. Held:

1. The trial court erred in holding that the affidavit of Charles Proctor, Ph.D., was not competent evidence. In this procedural posture, summary judgment, Proctor’s testimony was admissible evidence for the limited purpose for which it was offered — to show causation of the injury. It was not disputed that Dr. Proctor had expert knowledge, as he claimed, about various dosages of Motrin and the drug’s effects on pregnant women and their fetuses. Instead, the defendant physicians asserted that Dr. Proctor was not competent to testify because “he is not a medical doctor, is not licensed to practice medicine, nor is he permitted to write prescriptions.”

However, this argument misses the mark because Dr. Proctor’s testimony was not offered to address the applicable standard of care and any breach thereof, but to show causation. If Dr. Proctor, as a toxicologist and pharmacologist, had been offered as an expert witness against the two medical doctors for purposes of satisfying the strictures of OCGA § 9-11-9.1 (a), Dr. Proctor would not have been a competent witness. See Hewett v. Kalish, 264 Ga. 183, 186 (2) (442 SE2d 233) (1994). It is well settled that a professional expert affidavit for pleading purposes under OCGA § 9-11-9.1 (a) in a medical malpractice case must be from a person knowledgeable about the applicable standard of care that has allegedly been breached. See, e.g., Handson v. HCA Health Svcs. of Ga., 264 Ga. 293, 294 (443 SE2d 831) (1994) (allopathic physician competent to testify as to osteopathic physician’s care and skill); Stubbs v. Ray, 218 Ga. App. 420, 421 (1) (461 SE2d 906) (1995) (board-certified general surgeon shared overlapping expertise with defendant radiologist); Crook v. Funk, 214 Ga. App. 213, 215 (2) (447 SE2d 60) (1994) (physician competent to testify about competency of registered nurse).

Georgia law, however, does not mandate that only medical doctors be permitted to testify regarding medical issues; others with certain training and experience may testify on issues within the parameters of their expertise. Goodman v. Lipman, 197 Ga. App. 631, 633 (3) (399 SE2d 255) (1990); OCGA § 24-9-67. As we determined in Goodman, it was reversible error to exclude a pharmacologist’s testimony in a medical malpractice case, where it had been offered as to the effects of particular drugs which had allegedly been improperly prescribed by a cardiologist. We held that the trial court erred in excluding the testimony of the pharmacologist because his testimony about the properties of the drugs at issue was relevant to the case. Id. Compare Chandler v. Koenig, 203 Ga. App. 684, 687 (417 SE2d 715) (1992) (pharmacologist who lacked overlapping professional expertise not competent to testify for purposes of OCGA § 9-11-9.1 (a), regarding the standard of care in the medical profession).

By definition, a pharmacologist is “one who makes a study of the actions of drugs.” The Sloane-Dorland Annotated Medical-Legal Dictionary (1987 ed.). Pharmacology is “the study of drugs as to their chemistry, source, physical properties, preparation and physiological effects on living tissue, whether they be used in therapeutic amounts or otherwise, their absorption, their fats, their excretion and therapeutic indications for their use.” Colusa Remedy Co. v. United States, 176 F2d 554, 558 (8th Cir. 1949). In this case, as in Goodman, Dr. Proctor, as an expert in the fields of pharmacology and toxicology, was competent to testify to the scientific effect of the particular drug at issue. See Jordan v. Sante Fe Engineering, 198 Ga. App. 600, 602-603 (2) (b) (402 SE2d 304) (1991) (toxicologist qualified to testify as to the effect of certain substances on the body). We question whether a medical doctor’s pharmacological training is generally comparable to that of a doctor of pharmacology. Thus, it is difficult to see what medically trained professional could have been more qualified to testify about the effects of the particular drug at issue than Dr. Proctor, who had earned a Ph.D. with a double major of pharmacology and toxicology from a prominent university.

Moreover, it is well settled that “[t]he opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” OCGA § 24-9-67. Expert testimony, like Proctor’s offered here, is admissible when it is helpful or necessary to prove disputed facts. See Jones v. State, 232 Ga. 762, 764 (2) (208 SE2d 850) (1974). We conclude that it was error to exclude Dr. Proctor’s testimony on the limited issue for which it was offered.

Notwithstanding the physicians’ contention to the contrary, Riggins v. Wyatt, 215 Ga. App. 854, 856 (452 SE2d 577) (1994) neither requires nor authorizes a different result. In Riggins, unlike here, the issue was whether a professor of biomechanics possessed the requisite overlapping expertise to qualify as an expert witness for pleading purposes under OCGA § 9-11-9.1 as to the standard of care applicable to an orthopedic surgeon. We held that he did not, a conclusion unrelated to the instant case. Riggins, 215 Ga. App. at 856.

The dissent misconstrues the meaning of Chandler Exterminators v. Morris, 262 Ga. 257 (2), 258 (3) (416 SE2d 277) (1992), which was overruled in part by an act of the legislature. Effective July 1, 1993, the General Assembly amended OCGA § 43-39-1 to legislatively overrule Chandler Exterminators, supra, to the extent that it held that a neuropsychologist is not qualified to render an opinion concerning the diagnosis of the pathology of organic brain disorders and brain damage. Drake v. LaRue Constr. Co., 215 Ga. App. 453, 455 (2) (451 SE2d 792) (1994). Of course, it is axiomatic that no expert can testify outside the limits of his area of expertise.

2. Sinkfield contends that material issues remain as to whether Dr. Oh’s and Farmer’s treatment proximately caused her injury. She claims that the medical testimony sufficiently showed the parties dispute what caused the miscarriage. We agree. Her expert, Dr. Thornton, testified that although no single factor caused the miscarriage, in her professional opinion, Sinkfield miscarried primarily because of losing amniotic fluid and experiencing pre-term contractions. Dr. Proctor testified that it was his professional opinion that the Motrin 800 caused the deficit in the amniotic fluid and the demise of the fetus.

The dissent’s insinuation that Dr. Proctor’s testimony would not be probative evidence to establish the cause of the miscarriage is repudiated by the physicians who concede in their appellate brief that Dr. Proctor’s testimony, if admissible, would be probative as to the issue of the causation of the miscarriage. They acknowledge that “the affidavit of Charles Proctor, Ph.D. . . . addressed the sole allegation that the Motrin prescribed for Ms. Sinkfield by Dr. Farmer caused Ms. Sinkfield’s miscarriage.” They argue, “[o]nce Dr. Proctor’s testimony is disregarded as to whether the Motrin proximately caused Appellant’s miscarriage. . . .”

Moreover, the dissent’s reliance on Sinkfield’s prior medical history is unpersuasive because her next pregnancy, which was carefully monitored and treated as a high risk pregnancy, successfully concluded with the birth of a healthy baby boy. The fact that Sinkfield was threatening a miscarriage before the Motrin was prescribed does not resolve the disputed issue as to whether Motrin precipitated the miscarriage.

Notwithstanding the appellees’ assertion to the contrary, the fact that Dr. Thornton was not able to “conclusively” testify as to the exact cause of the miscarriage does not, without more, prove the absence of proximate causation especially when considered in light of her testimony as a whole. See Lee v. Satilla Health Svcs., 220 Ga. App. 885, 889 (2) (470 SE2d 461) (1996). Compare Bonard v. Lowe’s Home Centers, 224 Ga. App. 85, 87 (2) (479 SE2d 784) (1996). Moreover, Dr. Proctor’s uncontroverted testimony was that Motrin was the main cause of the injury. See Matthews v. DeKalb County Hosp. Auth., 211 Ga. App. 858 (1), 859 (440 SE2d 743) (1994). Based on the record before us, we cannot say that disputed material factual issues regarding causation do not remain.

Judgment reversed.

McMurray, P. J, Pope, P. J., Beasley, Johnson, Smith and Eldridge, JJ., concur. McMurray, P. J., Pope, P. J., Johnson, Smith and Eldridge, JJ., also concur specially. Andrews, C. J., Birdsong, P. J., and Blackburn, J., dissent.

Eldridge, Judge,

concurring specially.

While I concur totally with the majority, I feel compelled to address some of the issues raised in the dissent.

Stedman’s Medical Dictionary, 22d defines pharmacology as “[t]he science that deals with drugs, their sources, appearance, chemistry, actions, and uses.” Pharmacologist is defined as “[o]ne who specializes in pharmacology.” Pharmacist is defined as “[a] druggist; a pharmaceutist; an apothecary; one who prepares and dispenses drugs and has knowledge concerning their properties.” Pharmacy is defined as “[t]he act of preparing and dispensing drugs.” Toxicology is defined as “[t]he science of poisons — their source, chemical composition, action, tests, and antidotes.” Toxicologist is defined as “[o]ne who has a special knowledge of poisons and their antidote.” Physiology is defined as “[t]he science that deals with living things, with the normal vital processes of animal and vegetable organisms.” Physiologist is defined as ££[o]ne having special knowledge of, or whose vocation is the study of, physiology.” Anatomy is defined as “1. [t]he structure of an organism; morphology. 2. The science of the morphology of structure of organisms. 3. Dissection. 4. A work describing the form and structure of an organism and its various parts.” Cytology is defined as ££[t]he anatomy, physiology, pathology, and chemistry of the cell.” Biochemistry is defined as ££[p]hysiological chemistry; biological chemistry; the chemistry of living organisms and of the changes occurring therein.” Organic chemistry is defined as “the chemistry of carbon compounds and compounds containing covalent bonds.” Medicine is defined as ££[t]he art of preventing and curing disease; the science that treats of disease in all of its relations. The study and treatment of general diseases or those affecting the internal parts of the body, distinguished from surgery.” Etiology is defined as ££[c]ausation; the doctrine of causes, the study of causes; specifically, the cause of disease.” Pharmacodynamics is defined as ££[t]he study of the actions of drugs on the living organism.” Pharmacodynamic is defined as “[Relating to drug action.” None of the above areas of scientific study and practice requires a medical degree by definition, but all are a limited part of the medical training for a medical degree, usually limited to a semester course on each subject; however, a Ph.D. in pharmacology has more hours of specialized study in such areas than is required of a medical student, who is trained as a generalist with knowledge in all areas of medicine. Essential to the science of pharmacology is the knowledge and understanding of the cause and effect of disease and toxins on the physiology of the body and the effect of drugs not only upon disease but also on the body. The very purpose of the study of pharmacology is the creation of drugs that work, which means that through drug trials on animals and clinical trials on humans that drug’s effect on the disease and humans is determined.

To be a pharmacologist requires that the person know, understand, and have training in pathology, microbiology, mycology, cytology, the disease process, trauma, and toxicology, which are primarily medical specialties, in order to determine the action, contraindication, and use of drugs in treatment of the human; thus, pharmacology and toxicology are overlapping fields of science with medicine, and therefore, pharmacologists and toxicologists have knowledge as experts as to causation. Generally, the pharmacology and toxicology professors in medical schools are Ph.D.s instead of M.D.s, although some rare professors have dual degrees. OCGA § 43-34-20 (3) defines: “ £[t]o practice medicine’ means to hold one’s self out to the public as being engaged in the diagnosis or treatment of disease, defects, or injuries of human beings; or the suggestion, recommendation, or prescribing of any form of treatment for internal palliation, relief, or cure of any physical, mental, or functional ailment or defect.” The Code does not exclude a pharmacologist from having training, knowledge, and understanding of the effects of drugs and toxins on the human body; it only excludes the practice of medicine, which is quite a different thing. Thus, an expert is qualified to render an opinion as to causation, “[pjrovided an expert witness is properly qualified in the field in which he offers to testify.” Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 592 (4) (452 SE2d 159) (1994).

Where health care providers overlap in their fields of training and practice, a practitioner in one area has been permitted to testify as to the standard of care in such treatment; however, the areas must overlap in the area of testimony as to such standard of care. Handson v. HCA Health Svcs. of Ga., 264 Ga. 293 (443 SE2d 831) (1994); Hewett v. Kalish, 264 Ga. 183, 186 (1) (422 SE2d 233) (1994); Crook v. Funk, 214 Ga. App. 213, 215 (2) (447 SE2d 60) (1994); Tye v. Wilson, 208 Ga. App. 253, 254-256 (430 SE2d 129) (1993); Milligan v. Manno, 197 Ga. App. 171 (397 SE2d 713) (1990); Shaw v. Hosp. Auth. of Cobb County, 507 F2d 625 (5th Cir. 1975); Sandford v. Howard, 161 Ga. App. 495, 497 (4) (288 SE2d 739) (1982). If an expert in the area of health sciences, which overlaps in another area of health sciences, can qualify as an expert witness to testify as to the standard of care exercised in the area of overlapping treatment, then it also follows that such expert can testify as to his or her opinion as to causation, etiology, even though the expert is not a holder of a medical degree. The issue is training, skill, and experience to give competence to give an opinion as to cause and effect of the deviation from the standard of care. This the foregoing cases permit.

Chandler Exterminators v. Morris, 262 Ga. 257 (416 SE2d 277) (1992), Drake v. LaRue Constr. Co., 215 Ga. App. 453 (451 SE2d 792) (1994), and Handy v. Speth, 210 Ga. App. 155 (435 SE2d 623) (1993) essentially held that a neuropsychologist, who is trained to test for the existence of brain damage, lacks the expertise to give an opinion as to the etiology of such brain damage, because neuropsychology is not an overlapping field of practice with medicine, although it studies brain anatomy, morphology, and physiology.

“ ‘[T]he law in Georgia does not require that only medical doctors be permitted to give testimony regarding a medical issue, but allows others with certain training and experience to testify on issues within the scope of their expertise.’ ” Rainwater v. State, 210 Ga. App. 594, 595 (3) (436 SE2d 772) (1993). Pharmacology and toxicology are such overlapping areas of science/medicine where the expert in either area has the expertise to render an opinion as to the etiology of a drug and the effect on the human body.

Hunnicutt v. Hunnicutt, 237 Ga. 497 (228 SE2d 881) (1976) was a divorce case where the wife was allowed to testify that she had recurrent phlebitis with depressive reaction. There was no expert testimony to support this, and the husband appealed. The Supreme Court held regarding such non-expert testimony: “[t]he diagnosis and potential continuance of a disease are medical questions to be established by physicians as expert witnesses and not lay persons. Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1 (5 SE2d 214) (1939); Autry v. General Motors &c. Plant, 85 Ga. App. 500, 502 (69 SE2d 697) (1952).” None of these cases dealt with a medical malpractice causation issue or testimony by an expert qualified in an overlapping science to give his or her opinion on causation.

In Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200 (345 SE2d 904) (1986), this Court dealt with a case in which no expert witness, whether medical or overlapping field of health care, testified as to causation; only the plaintiff testified. However, in Division 2 of the opinion a nurse set forth the standard of care for giving an inter-muscular injection in the buttock and was allowed to do so by this Court; the nurse did not, as a practitioner in an overlapping area of health care, give an opinion as to causation.

In Eberhart v. Morris Brown College, 181 Ga. App. 516, 518 (1) (352 SE2d 832) (1987), this Court held in a contract dispute as to payment for medical treatment for a student-athlete for an alleged football injury that there was no expert testimony showing causation other than the plaintiff’s own opinion. This was not a case of overlapping fields of health care where someone other than a physician sought to testify.

In Goodman v. Lipman, 197 Ga. App. 631, 633 (399 SE2d 255) (1990), this Court held that a pharmacologist was a competent expert in a medical malpractice case to testify regarding pharmacokinetics and pharmacodynamics of drugs, causation. “The law in Georgia does not require that only medical doctors be permitted to give testimony regarding a medical issue, but allows others with certain training and experience to testify on issues within the scope of their expertise. For example, a licensed registered nurse is qualified to testify as an expert witness within the areas of her expertise. (Cit.) Hyde v. State, 189 Ga. App. 727, 728 (377 SE2d 187) (1988).” (Punctuation omitted.) Id. This Court reversed where the non-physician pharmacologist expert opinion was denied admission.

Chandler v. Koenig, 203 Ga. App. 684 (417 SE2d 715) (1992), is distinguishable from this case in that it held that under OCGA § 9-11-9.1 (a) a pharmacologist could not testify as to the standard of care of a physician. “[The pharmacologist] possesses expertise in that area which probably far exceeds that of the average medical doctor. However, other than [the pharmacologist’s] bare assertion that he is familiar with the applicable standard of care, nothing in [his] affidavit explains how his pharmacological education or his professional duties ha[ve] provided him with expert knowledge of the standard of care in prescribing of drugs ordinarily employed throughout the general medical profession by physicians who are years removed from the intensive pharmacological training they received in medical school and for whom the prescribing of drugs is but one facet of their practice.” Id. at 687. In this case the expert pharmacologist did not testify as to the standard of care but as to his field of expertise, drug use and causation, i.e., pharmacokinetics and pharmacodynamics, which the physician was supposed to have learned in medical school and which is the area of expertise of the pharmacologist.

I am authorized to state that Presiding Judge McMurray, Presiding Judge Pope, Judge Johnson and Judge Smith join in this special concurrence.

Birdsong, Presiding Judge,

dissenting.

As I cannot agree Sinkfield established through competent evidence that any negligence of the appellees caused her miscarriage, I must respectfully dissent.

Pretermitting whether appellees were negligent, even giving Sinkfield the benefit of all reasonable doubt, and construing the evidence and all inferences and conclusions therefrom in her favor

(Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843)), her evidence was not sufficient to withstand the grant of summary judgment. Although Dr. Thornton’s testimony and affidavit expressed disagreement with the treatment rendered by appellees, she never stated that the appellees’ actions caused the miscarriage. This is significant because Dr. Thornton was the physician who treated Sinkfield when she had this miscarriage. As a consequence, even though she examined both Sinkfield and the aborted fetus at that time, she could not attribute the cause of the miscarriage to any negligence of the appellees.

When asked specifically, “Could you believe that any different management of Ms. Sinkfield by Dr. Oh and Dr. Farmer up through and including January 7th of 1993, to a reasonable degree of certainty, could have prevented the miscarriage January 19th,” Dr. Thornton responded, “I cannot say with a hundred percent degree of accuracy that anything — that anything I’ve mentioned that could have been done would have been — would have prevented her miscarriage, no.” She was then asked, “The question is: With reasonable degree of medical certainty, understanding medicine is generally not a hundred percent situation?” Dr. Thornton responded, “No.”

Thus, the sole issue in this appeal is whether the trial court erred by finding that Dr. Proctor “is not a medical doctor and the court finds that his affidavit, which solely addresses the issue of Motrin prescribed for and used by the plaintiff, is not competent evidence which can be relied upon by the plaintiff to establish proximate cause.” “Whether a witness has such learning or experience in a particular art, science, or profession to be treated as an expert, or to be deemed prima facie an expert, is a matter addressed to the sound discretion of the trial court, and such discretion will not be disturbed unless manifestly abused.” (Punctuation omitted.) McDonald v. Glynn-Brunswick Mem. Hosp., 204 Ga. App. 7 (418 SE2d 393). As the record does not support a conclusion that the trial court abused its discretion, I find no basis to reverse its decision.

“In this state in cases involving misfeasance by a professional, it has been the rule that the causal connection between tort and injury must result from the negligence of the professional and as the procedure is of a professional nature, the characterization of the professional conduct must be by one possessing sufficient expertise in that discipline.” Turner v. Malone, 176 Ga. App. 132, 134 (4) (335 SE2d 404). Consequently, the affidavit of Dr. Proctor, a toxicologist and pharmacologist, does not save Sinkfield’s case. “The diagnosis and potential continuance of a disease are medical questions to be established by physicians as expert witnesses and not by lay persons. [Cits.]” Hunnicutt v. Hunnicutt, 237 Ga. 497 (228 SE2d 881). “The requirement that expert testimony be adduced in a medical malpractice case is premised upon the existence in such a case of ‘medical questions’ which control its resolution. ‘Medical questions’ may be defined as those concerning highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence.” (Citation and punctuation omitted.) Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 204 (345 SE2d 904). Accord Eberhart v. Morris Brown College, 181 Ga. App. 516, 518 (352 SE2d 832).

Dr. Proctor did not claim to be a physician or to have been otherwise trained in ascertaining the cause of miscarriages. Instead, he claimed only to have “expert knowledge of the effects that dosages of Motrin-800 (ibuprofen, 800 milligrams) have on pregnant women and their fetuses at various stages of pregnancy.” Dr. Proctor, however, did not state how he gained this expert knowledge or on what it is based. This is not sufficient. “Conclusory statements as to a witness’ ‘knowledge’ or ‘familiarity’ in a particular art, skill or science are not probative in determining the witness’ qualifications as an expert witness. Such determination must be based on evidence of the witness’ education, training or experience in the pertinent field of study.” Goodman v. Lipman, 197 Ga. App. 631, 632-633 (399 SE2d 255). Here, Dr. Proctor claimed to have expert knowledge of this subject, but did not say how it was obtained, and the majority and concurring opinion are left to conjure up how that expertise might have been gained. Of course, the majority and the special concurrence might be correct, but then they just as likely could be wrong about what expertise Dr. Proctor might possess.

It is the responsibility of the party proffering the expert witness to establish that the witness is qualified to give his or her expert opinion. In this instance the majority and the special concurrence go from speculation about what Dr. Proctor’s educational course of study might have been, to supposition about his qualifications, and finally to the assumption that his field of training and practice overlap with that of medical, health care providers. This is nice theory, but it is not a basis for concluding that this witness is qualified to give his expert opinion on the medical question of what caused this miscarriage.

Dr. Proctor merely states that based on his reviews of the medical records and relying upon his expertise as a pharmacologist and toxicologist, it was his professional opinion that the Motrin 800 prescribed by appellee “Farmer on December 24, 1992 was the predominant major contributing factor to the demise of the fetus” of Sinkfield and that this demise was “precipitated by Motrin-800 induced Oligohydramnios (deficit in amniotic fluid).”

Dr. Proctor, however, is not qualified and authorized to give an expert opinion on the cause of miscarriages. This is well demonstrated by Judge Eldridge’s special concurrence. In all of the definitions set forth therein, not one states that a pharmacologist or toxicologist is in any way qualified to diagnose the cause of medical conditions either from the review of medical records or otherwise.

This is especially true when those medical records show the following: December 2, 1992, Sinkfield complained of awaking in a puddle of fluid; December 7, 1992, vaginal bleeding; December 15, 1992, pinkish discharge; December 19, 1992, continued vaginal bleeding; December 23, still bleeding vaginally with abdominal pains and pinkish discharge; December 24,1992, abdominal pain, leaking fluid, vaginal bleeding, Motrin prescribed, threatened abortion; December 28, 1992, abdominal pains; January 12, 1993, increased risk for open neural tube defect on elevated MSAFP; January 19, 1993, Sinkfield came to hospital with fetus’ buttocks presented, no amniotic fluid present. The reason stated for admission was “spontaneous abortion probable incompetent cervix.” Sinkfield’s medical records also showed that she had a history of vaginal bleeding, preterm rupture of membrane, preterm uterine contractions, history of multiple (recurrent) spontaneous abortions, spontaneous vaginal delivery, and that she had “three previous spontaneous abortions.” Moreover, Dr. Thornton’s assessment contained in Sinkfield’s medical record shows, “intrauterine pregnancy at 22 weeks with a spontaneous abortion, with retained placenta, history of recurrent spontaneous abortions, and an elevated alpha feto protein.”

This is not a case in which a normal, healthy expectant mother is suddenly prescribed Motrin 800 and then a miscarriage results. Although I do not believe that Dr. Proctor would be qualified to diagnose the cause of the miscarriage in any case, he certainly is not qualified to diagnose the cause of the miscarriage in this case considering Sinkfield’s medical history.

“While expert witnesses may give their opinions as to facts, principles, and rules involved in the science in which they are learned, they are not, as to questions lying out of the domain of the science, art, or trade in which they are experts, exempt from the restriction of the rule which requires witnesses to state facts and not opinions.” Chandler Exterminators v. Morris, 262 Ga. 257, 258 (3) (b) (416 SE2d 277). Even though the General Assembly subsequently authorized psychologists to testify about the cause of brain injuries (see OCGA § 43-39-1 (3)), it did not legislatively overrule the principles on which Morris was based. Compare Johnson v. Knebel, 267 Ga. 853, 855, n. 6 (485 SE2d 451), citing Morris favorably.

“The opinions of expert witnesses as to questions of science, skill, trade, or other matters beyond the ken of the average layperson are always admissible, and such opinions may be based upon facts proved by other witnesses. [OCGA § 24-9-67.] However, before being qualified to render an opinion, the expert witness must be qualified as to the relevant area of expertise: ‘While expert witnesses may give their opinions as to facts, principles and rules involved in the science in which they are learned, they are not, as to questions lying outside the domain of the science, art, or trade in which they are experts, exempt from the restriction of the rule which requires witnesses to state facts and not opinions.’ [Morris, 262 Ga. at 258.]” Johnson v. Knebel, supra at 857-858. Here, Dr. Proctor purports to give his opinion on the cause of a miscarriage when nothing in his affidavit shows that he is qualified by training or experience to do so.

Thus, as Sinkfield did not show that Dr. Proctor had any expertise in fields other than pharmacology and toxicology, she did not establish that he was qualified to give an expert opinion on the cause of this miscarriage. “Expert knowledge is required to render an expert opinion.” Johnson v. Knebel, at 859 (3). Further, none of the cases cited by the majority authorizes pharmacologists or toxicologists to testify outside their fields of expertise.

In this case, Dr. Proctor’s affidavit is not limited to the scientific effect of Motrin or to connecting the Motrin to a cause of the miscarriage identified by a competent expert. Instead, his affidavit was offered to establish the cause of the miscarriage to the exclusion of all other possible medical conditions, congenital defects, complications, diseases, or injuries — even those identified in Dr. Thornton’s affidavit. Although Dr. Proctor may be qualified to testify about the effects of Motrin and other drugs, he is not qualified to give his opinion on the medical causation in this manner. This is especially true in this case in which no competent medical testimony, and especially that of the treating physician, established the cause of the miscarriage, and Sinkfield’s medical history shows that she had miscarriages on three earlier occasions and this time was threatening a miscarriage before the Motrin was prescribed.

Decided December 5, 1997

Reconsideration denied December 18, 1997.

Kenneth Dious & Associates, I. Kenneth Dious, The Kendall Law Firm, Lisa R. Roberts, for appellant.

The majority’s comment regarding the purported concession in the appellees’ brief, distilled to its essence, says the appellees concede that if Dr. Proctor was not incompetent to render an opinion on causation, he could give competent testimony. Two problems exist with this statement: One, appellees made no such statement and, two, even if such statements were made, it would not be a concession that Dr. Proctor was competent to testify about the causation of the miscarriage, which is the issue here. It is because he was not competent to testify about this subject that his opinion has no probative value. OCGA § 43-34-20 (3) authorizes those practicing medicine to be engaged in the diagnosis of disease, defects, or injuries. No comparable statute authorizes pharmacologists or toxicologists to do so.

With all of his knowledge of drugs and medications, nothing in Dr. Proctor’s affidavit shows that he is even authorized to write a prescription for the dispensation of Motrin 800 in this state. See OCGA § 26-4-2 (20). Further, based upon his affidavit, he is not qualified to state the standard of care in this case (see Chandler v. Koenig, 203 Ga. App. 684, 686-687 (417 SE2d 715)), and he is not qualified to sign a death certificate stating a cause of death.

Although the news that, after suffering three earlier miscarriages, Sinkfield with a different course of treatment successfully delivered a healthy baby is most welcome, that news is not relevant to whether Sinkfield established Dr. Proctor was competent to give an expert opinion in this case.

As the trial court did not abuse its discretion by rejecting Dr. Proctor’s opinion, I would affirm the grant of summary judgment.

I am authorized to state that Chief Judge Andrews and Judge Blackburn join in this dissent.

Alston & Bird, Susan B. Devitt, Debra R. Sydnor, for appellees.