author: Ruffin, Judge.

text:
    A01A0774, A01A0775, A01A0776.
    SUDLER et al. v. CAMPBELL et al. (three cases).
    (550 SE2d 711)
   Ruffin, Judge.

Appellants Howard Sudler, Mary Sudler, the Sudler Partnership, the Sudler Corporation, and Pisón Partners, L.P. sued the City of Atlanta and several city officials (“the City appellees”) for trespass, interference with contractual and business relations, violation of “federal home provisions,” equal protection violations, breach of contract, and conspiracy to defraud. The City appellees moved for summary judgment on each of appellants’ claims. In addition, they asserted that Pisón Partners (“Pisón”) was the only real party in interest and moved to dismiss the claims of Howard Sudler, Mary Sudler, the Sudler Partnership, and the Sudler Corporation.

The trial court granted the City appellees’ motions and also denied as moot appellants’ motion to set aside a foreclosure conducted by the City of Atlanta. Appellants challenge each of these rulings on appeal. For reasons discussed below, we affirm.

Case No. A01A0776

1. In Case No. A01A0776, appellants attack the trial court’s grant of summary judgment to the City appellees. “In reviewing the grant or denial of summary judgment, a de novo standard of review is applied, and we view the evidence with all reasonable inferences and conclusions in favor of the party opposing the summary judgment.”

Viewed in this manner, the record shows that Howard and Mary Sudler were partners in the Sudler Partnership, which, in turn, was the original general partner of Pisón. The Sudler Corporation later became Pison’s general partner.

In August 1994, the United States Department of Housing & Urban Development (“HUD”) auctioned an apartment complex in Fulton County (“the property”). The Sudler Partnership submitted the winning bid of $1,500,000 and planned to rehabilitate the housing development. The City of Atlanta became interested in the project, which officials thought would bring needed affordable housing to the area. After the auction, but before the Sudler Partnership acquired the property, the City’s Urban Residential Finance Authority (“URFA”) adopted an “inducement resolution” setting forth “its official commitment, to issue . . . Bonds . . . in an amount of approximately $20,000,000 prescribed by [the Sudler Partnership] and to expend or loan the proceeds thereof to finance the costs of the [property’s development].”

The Sudler Partnership scheduled the property closing for December 1994. Before the closing, URFA issued another resolution reducing the bond commitment to $15,000,000 and indicating that Pisón had replaced the Sudler Partnership as developer. The City also loaned Pisón $1,500,000 to acquire the property, which Pisón purchased on December 22, 1994. Pisón gave the City a deed to secure debt, and the loan documents required that the City and URFA approve various aspects of the renovations. In addition, Pisón agreed to repay the loan by December 1, 1995.

Apparently, the redevelopment did not proceed as planned. According to Howard Sudler, he had difficulty obtaining necessary approvals from the City and never received the bond financing discussed in URFA’s resolutions. On November 29, 1995, Pisón asked the City for a six-month extension on the $1,500,000 note. Pisón received no response and did not repay the loan by the December 1, 1995 due date. The City’s counsel subsequently informed Pisón that it was in default.

In March 1996, the City began advertising for an April foreclosure sale on the property. Prior to the sale, the City and Pisón entered into a Forbearance Agreement, under which the City agreed not to foreclose before July 1, 1996. In addition, Pisón, Howard Sudler, the Sudler Partnership, and the Sudler Corporation signed a Covenant Not to Sue, in which they agreed not to

institute any action or otherwise assert against the CITY OF ATLANTA, its officers, directors, agents, [or] employees . . . any rights, claims, demands, actions, causes of action, or suits, whether in law, equity, or otherwise, whether in contract, tort, or otherwise, or any suit of any kind or nature whatever, now accrued or hereafter to accrue, as the result of or directly or indirectly related to any damages, known or unknown, foreseen or unforeseen, manifested or not yet manifested, arising out of or otherwise related to (a) the loan . . . made by the City of Atlanta to Pisón Partners, L.P. on December 22, 1994, in the principal amount of $1,500,000; or (b) the property

The Covenant Not to Sue was attached as an exhibit to and explicitly incorporated in the Forbearance Agreement.

Despite this compromise, problems with the project continued. In June 1996, the City scheduled a foreclosure sale for July 2, 1996. On July 1, however, Pisón filed for bankruptcy under Chapter 11 of the United States Bankruptcy Code, automatically staying the foreclosure. The City subsequently requested relief from the stay. On May 20, 1997, the bankruptcy court lifted the stay, and the City foreclosed in July 1997. Pison’s bankruptcy petition was later dismissed.

On June 27, 1997, appellants filed this action alleging that the City appellees (1) conspired to trespass on the property, (2) interfered with appellants’ contractual and business relations regarding the redevelopment project, (3) violated the Cranston-Gonzalez National Affordable Housing Act, (4) violated appellants’ equal protection rights, (5) breached certain contracts, and (6) fraudulently induced appellants to purchase the property and enter agreements with the City.

In their motion for summary judgment, the City appellees argued that appellants’ claims were barred by res judicata and, alternatively, that appellants Pisón, Howard Sudler, the Sudler Partnership, and the Sudler Corporation had released the City appellees from all claims. The trial court agreed, granting summary judgment on both grounds. Because we find that the Covenant Not to Sue preeludes the claims of each appellant except Mary Sudler, we need not reach the res judicata issue.

On appeal, appellants do not question the scope of the Covenant or its application to all claims against the City appellees. They argue instead that “they were fraudulently induced into entering the [Forbearance Agreement] (and the [Covenant Not to Sue] therein),” raising factual questions as to the validity of the release. Specifically, Howard Sudler testified that appellants entered the Covenant Not to Sue based on assurances from the City’s counsel that the City would work with appellants in developing the property and securing bond financing and that appellants “would have a clear legal claim against the City if the City or URFA impeded [their] financing in any way or failed to cooperate with any reasonable proposal.”

The trial court rejected appellants’ fraudulent inducement argument, finding summary judgment appropriate because the Covenant provided “that ‘[t]he Covenantors ... do not rely on any inducements, promises or representations made by the Covenantee, or its counsel not hereinabove expressly set forth in writing.’ ” We agree with the trial court.

Parties claiming fraudulent inducement have two remedies: rescind the contract as voidable or affirm the contract and sue for damages. A party that rescinds is not limited by the contract terms. If, however, the party decides to affirm and sue on the contract, the contract terms control, and the party is bound by any merger clause or disclaimer.

Appellants have cited no evidence that they rescinded any agreement in this case. Furthermore, although the claims in appellants’ exceedingly lengthy complaint are not completely clear, their appellate brief clarifies their intent to sue in contract for breach of the Forbearance Agreement, which explicitly incorporates the Covenant Not to Sue. All appellants except Mary Sudler apparently claim a right to sue for this alleged breach. According to appellants, “[i]t is the breach of [an] implied covenant of good faith and fair dealing in the [Forbearance Agreement] that the [a]ppellants maintain serve as the proof of . . . one of the breaches of contract between the City [a]ppellees and the [a]ppellants.” Thus, by appellants’ own admission, they are suing for breach of the Forbearance Agreement.

By alleging that the City appellees breached the Forbearance Agreement, which specifically incorporates the Covenant Not to Sue, appellants elected their remedy — they chose to affirm the contract. They are now bound by its terms, including their explicit agreement that they would not file suit against the City or its officers or employees. Appellants are further bound by their statement in the Covenant that, in entering the agreement, they did not “rely on any inducements, promises, or representations . . . not hereinabove expressly set forth in writing.” The presence of this merger clause is determinative and “precludes any reliance on oral representations.” Accordingly, the trial court properly awarded the City appellees summary judgment as to claims brought by Pisón, Howard Sudler, the Sudler Partnership, and the Sudler Corporation.

Case No. A01A0774

2. Given our decision in Division 1, the only possible claims remaining against the City appellees are those brought by Mary Sudler. The trial court, however, dismissed Mary Sudler’s claims, finding that she was not a real party in interest under OCGA § 9-11-17.

Although Mary Sudler challenges that ruling in Case No. A01A0774, her brief does not, in any way, establish that she is a real party in interest in this case. It outlines the interest that Howard Sudler, the Sudler Partnership, and the Sudler Corporation allegedly have, but barely mentions Mary Sudler in her individual capacity. Similarly, appellants’ lengthy complaint merely identifies Mary Sudler as a partner in the Sudler Partnership, notes her Delaware residence, and asserts that she and Howard Sudler “won the [HUD] auction bid” for the subject property.

Decided June 21, 2001

Reconsideration denied July 13, 2001

Meriwether & Tharp, Patrick L. Meriwether, Robert L. Tharp, for appellants.

Weinstock & Scavo, Michael Weinstock, Thomas, Kennedy, Sampson & Patterson, Thomas G. Sampson, Monica E. Ewing, Lemuel H. Ward, for appellees.

Mary Sudler’s involvement in this suit stems from her partnership interest in the Sudler Partnership. As we have previously held, however, “[f]or the suit to survive as to [her], there must be a relationship between [her] and the tortfeasor or contract-breacher independent of that derived as a partner.” No such relationship is alleged in the complaint or asserted on appeal. Accordingly, the trial court properly dismissed Mary Sudler’s claims against the City appellees.

Case No. A01A0775

3. In their final case on appeal, appellants challenge the trial court’s denial of their motion — filed against the City — to set aside the foreclosure on the subject property. The trial court dismissed this motion as moot after granting summary judgment to the City. In Division 1, we affirmed that summary judgment award as to claims brought by Pisón, Howard Sudler, the Sudler Partnership, and the Sudler Corporation. In Division 2, we affirmed the trial court’s dismissal of Mary Sudler’s claims against the City. Consequently, no claims involving the City remain, and the trial court properly dismissed appellants’ pending motion to set aside the foreclosure as moot.

Judgments affirmed.

Johnson, P. J., and Ellington, J., concur.

       (Punctuation omitted.) McBride v. Brown, 246 Ga. App. 149 (538 SE2d 863) (2000).

       Mary Sudler did not enter into the Covenant Not to Sue.

       On appeal, appellants also assert that they were “induced” to enter the Covenant because the City promised in the Forbearance Agreement not to commence foreclosure proceedings or exercise any other rights or remedies against the property until after July 1, 1996. According to appellants, the City breached this agreement by advertising the upcoming foreclosure in June 1996 publications and writing letters in May 1996 about the foreclosure. Appellants, however, have presented no evidence that they entered the Forbearance Agreement or Covenant based on any representations or understandings about how or when the City would discuss or advertise the foreclosure. At most, Howard Sudler testified that appellants entered these contracts because of the City’s promise to extend the loan until — and not foreclose before — July 1, 1996, a promise the City fulfilled. Furthermore, appellants have pointed to no evidence that the City made the promise to delay foreclosure proceedings with a present intention not to perform or with knowledge that the forbearance would not take place, as required to support fraudulent inducement. Lively v. Garnick, 160 Ga. App. 591, 595-596 (3) (287 SE2d 553) (1981).

       See Orion Capital Partners v. Westinghouse Elec. Corp., 223 Ga. App. 539, 542 (2) (b) (478 SE2d 382) (1996); del Mazo v. Sanchez, 186 Ga. App. 120, 125 (366 SE2d 333) (1988).

        Orion Capital Partners, supra.

       Id.; see also Markowitz v. Wieland, 243 Ga. App. 151, 153 (1) (532 SE2d 705) (2000).

       The quoted statement in the preceding sentence appears in a brief submitted by Howard Sudler, Mary Sudler, the Sudler Partnership, and the Sudler Corporation. Pisón was not a party to the brief, which relates to the real party in interest issue. Nevertheless, all appellants, including Pisón, make the same breach of contract allegations in the complaint. It follows that Pisón also seeks damages for breach of the Forbearance Agreement.

        Markowitz, supra at 153; see also Owens v. Union City Chrysler-Plymouth, 210 Ga. App. 378, 380 (436 SE2d 94) (1993) (“[Plaintiff’s] actions resulted in an affirmation of the . . . contract, and by virtue of that affirmation of the contract containing a merger clause, she was estopped from asserting any reliance upon the alleged misrepresentation made prior to execution of the contract.”).

        Goss & Goss Dev. Co. v. First Union Nat. Bank &c., 196 Ga. App. 436, 437-438 (2) (396 SE2d 19) (1990).

       Id. at 438.

       See Richardson v. Simmons, 245 Ga. App. 749, 750 (538 SE2d 830) (2000) .(pending motion rendered moot by grant of summary judgment).


source: Caselaw Access Project

author: Andrews, Presiding Judge. Eldridge, Judge,

license: Public Domain

text:
    A01A0006.
    McCOMBS v. SYNTHES (U.S.A.) et al.
    (553 SE2d 17)
   Andrews, Presiding Judge.

This is the second appearance of this product liability case before us. Plaintiff Linda B. McCombs appeals from the trial court’s grant of partial summary judgment to defendant Synthes Spine Company, L.P. (Synthes Spine) on its duty to warn McCombs under the learned intermediary doctrine (duty to warn claim). McCombs also appeals from the trial court’s order finding a proper case and granting the renewed motion to open default, pursuant to OCGA § 9-11-55 (b), filed by defendants Synthes, Inc., Synthes North America, Inc., and Synthes Ltd., U.S.A. (defaulting Synthes defendants).

When this case first appeared before this Court in McCombs 1, we affirmed that part of the trial court’s order granting defendants Southern Regional Medical Center, Inc.’s (Southern Regional Medical Center) and its parent corporation, Georgia MedCorp, Inc.’s (Georgia MedCorp), motion to dismiss McCombs’ breach of warranty claims and reversed that part of the order denying McCombs’ motion for default judgment against the defaulting defendants and remanded the case “for consideration of any pending motion to open default of [the defaulting defendants].” Id. at 681-682 (2).

The evidence construed in the light most favorable to McCombs shows that Dr. Achecar operated on McCombs on July 26, 1994, as a result of a cervical disk herniation. Dr. Achecar installed a plate device, manufactured by Synthes (U.S.A.) and distributed by Synthes Spine to Southern Regional Medical Center, in McCombs’ back in order to facilitate fusion of three vertebrae. That such a device is not available except upon prescription, surgical insertion, and under the supervision of the treating physician is undisputed in this product liability action.

McCombs was a smoker, and Dr. Achecar explained to her that smoking could be detrimental to the fusing of her vertebrae because smoldng slows healing. Although McCombs used the Nicoderm patch, she was not able to quit smoking.

After surgery, McCombs was monitored by Dr. Achecar, and, during office visits on August 22 and September 6, 1994, the bone grafts and plate were in position and fusion was beginning. On November 21, 1994, nearly four months after the surgery, x-rays determined that the plate had fractured.

Dr. Achecar acknowledged that fracture of a fixation device is a risk of such surgery. The package insert included with the Synthes plate contained the following warning to the operating surgeon:

These devices can break when subjected to the increased loading associated with delayed union or nonunion. Internal fixation appliances are load sharing devices which hold a fracture in alignment until healing occurs. If healing is delayed, or does not occur, the implant could eventually break due to metal fatigue. Loads produced by weight bearing and activity levels will dictate the longevity of the implant. The patient should understand that stress on an implant can involve more than weight bearing. In the absence of solid bony union, the weight of the limb alone, muscular forces associated with moving a limb, or repeated stresses of apparent relatively small magnitude, can result in failure of the implant. Notches or scratches put in the implant during the course of surgery may also contribute to breakage.

(Emphasis in original.)

Also, Dr. Pettine, upon whose deposition McCombs relied in opposing summary judgment, acknowledged that manufacturers of fixation devices warn that there is risk of plate breakage if the patient does not achieve fusion and that smoking can interfere with fusion.

In two enumerations of error, McCombs contends that the state court erred in granting Synthes Spine partial summary judgment as to her duty to warn claim because: (1) the grant of partial summary judgment was issued sua sponte denying her a full and fair opportunity to respond, Synthes Spine having neither briefed the issue nor argued it at the hearing on motion for summary judgment; and (2) there exists a jury question as to the adequacy of the warning given McCombs’ doctor by the Synthes defendants. In three additional enumerations of error, McCombs contends that the state court erred in granting the defaulting Synthes defendants’ renewed motion to open default for violation of the law of the case rule in that no motion to open default was “pending” in the trial court after this Court’s decision in McCombs I, which, among other things, remanded the case for consideration of any pending motion to open default of the defaulting Synthes defendants. In the alternative, McCombs contends that the state court abused its discretion in granting the motion to open default because the verified answer of the defaulting defendants failed to contain factual assertions "under oath sufficient to show a meritorious defense under OCGA § 9-11-55 (b), and, in any event, the defaulting Synthes defendants’ mistaken belief claim as to the validity of their answer was insufficient as a matter of law to authorize opening default on the grounds of “excusable neglect” or “proper case.” Because these claims of error are without merit, as set out below, we affirm.

1. (a) The state court did not err in granting Synthes Spine’s partial summary judgment as to McCombs’ duty to warn claim for its failure to afford her an opportunity to controvert the claims against her. Citing Aycock v. Calk, 222 Ga. App. 763-764 (476 SE2d 274) (1996), McCombs correctly argues that a trial court errs in sua sponte granting summary judgment in circumstances where the non-moving party has not been afforded a full and final opportunity to respond to the claims against that party. She also correctly cites Dixon v. MARTA, 242 Ga. App. 262, 266 (3) (529 SE2d 398) (2000), for the proposition that the nonmoving party is denied such an opportunity in circumstances where the record shows that neither party briefed or presented oral argument on the claim struck. Here, however, the record reflects that Synthes Spine briefed the duty to warn claim in its brief in response to plaintiff’s motion for entry of default as to the defaulting Synthes defendants. The issue was not argued at the hearing on motion for summary judgment, but, in view of the foregoing, this is of no legal significance.

(b) It is well settled that the “learned intermediary” rule of Hawkins v. Richardson-Merrell, Inc., 147 Ga. App. 481 (249 SE2d 286) (1978), is applicable to medical devices implanted in patients under the supervision of a physician. The rationale regarding medical devices is the same as that applicable to drugs prescribed by a physician, i.e., that the duty to warn the patient should rest, not with the manufacturer, designer, or distributor, but solely with the treating physician, in that “the decision to employ prescription medication involves professional assessment of medical risks in light of the physician’s knowledge of a patient’s particular needs and susceptibilities. Walker v. Jack Eckerd Corp., 209 Ga. App. 517, [521 (2) (434 SE2d 63) (1993) (whole court)].” Lance v. American Edwards Laboratories, 215 Ga. App. 713, 716 (452 SE2d 185) (1994) (physical precedent).

As reiterated in Presto v. Sandoz Pharmaceuticals Corp., 226 Ga. App. 547, 548-549 (1) (487 SE2d 70) (1997), “[a]s we stated in Hawkins, supra at 483 (1), ‘[t]his special standard [(learned intermediary rule)] is an understandable exception to the . . . general rule that one who markets goods must warn foreseeable ultimate users of dangers inherent in his products.”

The recent case of Williams v. American Med. Systems, 248 Ga. App. 682, 685 (3) (548 SE2d 371) (2001), is factually very similar to McCombs and reemphasizes the viability of the learned intermediary rule. There, a penile implant had to be removed because of infection. The strict liability claim remained viable based on the theory that tubing in the implant became disconnected and caused the infection. The failure to warn claim, however, was correctly disposed of in favor of the manufacturer because “when a device can be prescribed and inserted only by a physician, that treating physician has sole responsibility for advising the patient of dangers associated with the use of the device. The designer, manufacturer, and distributor are under no duty to the patient.” Id.

While recognizing the “learned intermediary” rule, the dissent attempts to eviscerate the rule by analogizing it to the duty imposed by OCGA § 51-1-11 (c). Below, however, McCombs did not argue that the “learned intermediar/’ rule did not apply or should be “expanded” as argued by the dissent.

“Appellate courts review enumerations for correction of errors of law committed by the trial court — where motions or objections are properly presented for a ruling by the trial court. Cohen v. Lowe Aviation Co., 221 Ga. App. 259, 261 (2) (470 SE2d 813) (1996).” Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 748 (2) (542 SE2d 151) (2000).

Therefore, the trial court’s grant of summary judgment based on the learned intermediary rule was correct.

2. We find no error in granting the defaulting Synthes defendants’ motion to open default as a proper case. Upon the payment of costs, as in this case, a prejudgment motion to open default under OCGA § 9-11-55 (b),

may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. This court has previously held that the “showing” required by this Code section to be made “under oath” includes the showing of a “meritorious defense.” Generally, the opening of a default rests within the sound discretion of the trial court. However, compliance with the four conditions is a condition precedent; in its absence, the trial judge has no discretion to open the default.

(Citations and punctuation omitted; emphasis in original.) C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345, 346 (1) (398 SE2d 297) (1990).

McCombs contends that the state court erred in granting the motion to open default as violative of the law of the case rule because, on remand in McCombs I, we directed the trial court to consider any motion to open default of defaulting Synthes defendants then pending. Notwithstanding McCombs’ claim to the contrary, the record shows that such a motion was then pending, having been filed on April 14, 1997, as a part of the defaulting defendants’ brief in response to McCombs’ motion for entry of default judgment against them. Even were this not the case, we would decline to construe our use of the word “pending” as in conflict with the state court’s statutory discretion to consider a motion to open default at any time before entry of final judgment. OCGA § 9-11-55 (b).

By the verified answer in support of their renewed motion to open default, the defaulting defendants offered proof of costs paid, offered to plead instanter, and announced ready to proceed to trial. Further, they argued a proper case and set up a meritorious defense by offering evidence under oath that they were not involved in the design, manufacture, testing, or distribution of the spinal plate at issue. This was a sufficient factual statement to state a meritorious defense under the circumstances of this cpse.

Although McCombs attacks the sufficiency of the defaulting defendants’ verified answer as verified by affidavit given upon the affiant’s “best of my knowledge or belief” and not personal knowledge, the record reflects the contrary, because the affiant by her affidavit also attested to possessing “personal knowledge of each of the facts attested to in the Verified Answer.” The state court did not abuse its sound discretion in determining this to be a sufficient oath to opening the default under its authority to do so as a proper case. See Johnson v. Durrence, 136 Ga. App. 439, 440 (221 SE2d 652) (1975) (“A judge is always required to exercise a legal discretion, and in order to do that, some facts must be proven before him which warrant the exercise of legal discretion.”) (emphasis in original). It is also clear that the potential for manifest injustice exists in this case if default judgment is entered against the defaulting defendants in that they have duly pled what appears to be a meritorious defense. See Berklite v. Bill Heard Chevrolet Co., 239 Ga. App. 791, 793 (2) (522 SE2d 246) (1999).

The sole function of an appellate court reviewing a trial court’s grant of a motion to open default is to determine whether the conditions requisite to opening default have been met and, if so, to determine whether the trial court has abused its discretion in opening default case by case. Majestic Homes v. Sierra Dev. Corp., 211 Ga. App. 223, 224 (1) (438 SE2d 686) (1993). Under the circumstances of this case, the state court, finding a proper case, did not abuse its discretion in opening default. See Broadaway v. Thompson, 127 Ga. App. 600-601 (194 SE2d 342) (1972) (broader discretion in opening default under “proper case” ground than under grounds of providential cause and excusable neglect). In light of the foregoing, we need not address McCombs’ remaining claim that the grant of the motion to open default was error for want of excusable neglect.

Judgment affirmed.

Johnson, P. J., Smith, P. J., Ruffin, Miller and Ellington, JJ, concur. Eldridge, J., dissents.

Eldridge, Judge,

dissenting.

In the absence of evidence showing that the Synthes defendants warned McCombs’ surgeon of danger associated with the implant in issue, whether known before its implantation or acquired thereafter as here, McCombs correctly argues that a jury question remains on the issue. It is well settled that the “learned intermediary” rule of Hawkins v. Richardson-Merrell, Inc., 147 Ga. App. 481 (249 SE2d 286) (1978), is applicable to medical devices implanted in patients under the supervision of a physician as it is to drugs to be taken by prescription upon a rationale applicable in common, i.e., that the duty to warn the patient should rest, not with the manufacturer, designer, or distributor, but solely with the treating physician in that “the decision to employ prescription medication involves professional assessment of medical risks in light of ... a patient’s particular needs and susceptibilities. Walker v. Jack Eckerd Corp., 209 Ga. App. 517, [521 (2) (434 SE2d 63) (1993)].” Lance v. American Edwards Laboratories, 215 Ga. App. 713, 716 (452 SE2d 185) (1994). Ordinarily, a warning to the learned intermediary is sufficient to satisfy the manufacturer’s duty of care before a prescription drug is sold or a medically prescribed implant is installed. See generally Presto v. Sandoz Pharmaceuticals Corp., 226 Ga. App. 547, 549 (487 SE2d 70) (1997). However, after a drug has been prescribed or after a device has been implanted under a doctor’s care, the learned intermediary rule should lie only to the extent that the manufacturer warned the physician and that the warning, as given, was adequate. Id. Otherwise, manufacturers have a duty to directly warn patients by all practicable means of danger as to such prescription drugs as they may he taking or such implants in them under a doctor’s care. Id.; compare Davis v. Wyeth Laboratories, 399 F2d 121, 130 (9th Cir. 1968) (manufacturer of polio vaccine required to warn consumers of risks attendant to the use of the vaccine because vaccine distributed in the absence of a physician serving as learned intermediary).

This result is not inconsistent with the duty to exercise ordinary care to warn of a known or reasonably foreseeable risk of injury or death which applies to products after they are sold notwithstanding the statute of repose abolishing such duty, a duty to warn which is distinguishable from the duty to warn before sale. See OCGA § 51-1-11 (c); Chrysler Corp. v. Batten, 264 Ga. 723, 724 (1), 727 (4) (450 SE2d 208) (1994); see also Love v. Whirlpool Corp., 264 Ga. 701, 703 (1) (449 SE2d 602) (1994); Mack Trucks v. Conkle, 263 Ga. 539, 544 (4) (436 SE2d 635) (1993); DeLoach v. Rovema Corp., 241 Ga. App. 802, 804, n. 3 (527 SE2d 882) (2000); Bishop v. Farhat, 227 Ga. App. 201, 206 (6) (489 SE2d 323) (1997). That such a duty to warn of danger applies to ordinary products, such a duty to warn attaches to require manufacturers to warn of danger identified by post-sale knowledge acquired after the first sale of such product, particularly as to prescription drugs or implanted medical devices — this because the probability of risk of injury or death attendant to the continued use of the same is necessarily greater than that associated with products used less intimately.

The duty to warn of a reasonably foreseeable danger arising out of knowledge acquired about a product after it is first sold differs from the duty to warn before such sale for several reasons. In the period before implantation, for example, time may elapse before the product is first sold; learned intermediaries may choose not to use the product; or patients may choose not to grant informed consent after being advised of the risks involved by their learned intermediaries. However, after an implant has been sold and is in use, the nature of the danger is imminently more real and palpable in that the risk now co-exists with the patient, not unlike an unstable explosive awaiting a detonating jar or charge. Stated otherwise, before a medical device is implanted, the learned intermediary is the gatekeeper who assesses the risk and informs the prospective patient-recipient who then must give his or her consent to the implant. After implantation, the learned intermediary no longer acts as gatekeeper, because the autonomy a patient-recipient enjoys in choosing what happens to his or her body determines whether to accept the risk of surgical removal versus the risk of danger from continuing to live with the implant, physical and mental pain, as well as the cost of removal in terms of time, pain in recuperation, and money. Neither is it assured after a medical device is implanted that the learned intermediary is the best means by which to warn the patient-recipient of after-acquired knowledge of danger associated with the implant’s continued use. The patient’s surgeon may have died, retired, moved, or changed HMO, PPO, or other health insurance. There may be no continuing surgeon-patient relationship. Such relationship may have been terminated; the patient may have been referred back to his or her primary care physician; the patient may have changed his or her HMO, PPO, or other health insurance; or the patient may have moved away. In each instance, the learned intermediary ceases to be the best means to convey the warning to the recipient patient, requiring that manufacturers give notice of post-sale danger by the means set out above. Thus, a jury issue exists.

Decided July 13, 2001

Webb, Stuckey & Lindsey, James H. Webb, Jr., Martin C. Jones, Sharon S. Whitwell, for appellant.

Kilpatrick Stockton, Susan A. Cahoon, Jeffrey J. Toney, for appellees.

       See McCombs v. Southern Regional Med. Center, 233 Ga. App. 676 (504 SE2d 747) (1998) (McCombs I).

       The underlying action arises out of McCombs’ back surgery performed at Southern Regional Medical Center.
      The surgical procedure involved, inter alia, the installation of a plate device to stabilize her spine. The surgeon installed a plate system manufactured by Synthes (U.S.A.). After experiencing problems with the plate, which she contends was fractured, Linda McCombs brought a [three-count] product liability suit against [all Synthes defendants], alleging strict liability and negligent design, manufacture and testing of the plate system. She also sued all Synthes defendants, Southern Regional Medical Center, Inc., and Georgia MedCoip, Inc., under the Georgia Uniform Commercial Code (OCGA §§ 11-2-314 and 11-2-315) and the Magnuson-Moss Act (15 USC § 2301 et seq.) asserting that these seven defendants had breached implied warranties of merchantability and fitness of the product for a particular purpose.
      Id.
      The strict liability claim remains pending below.

       Dr. Achecar is not a party to this litigation.

       In opposition to summary judgment, McCombs tendered the deposition of Dr. Kenneth A. Pettine, a board-certified orthopedic surgeon specializing in the spine. Dr. Pettine deposed that in November 1993 he notified the Synthes defendants by letter that he and his partner had experienced a six percent breakage rate using the implant in issue, ten of 170 such implants having failed. The complained-of surgery was performed more than a year after the November 1993 letter was sent. There also is evidence the Synthes defendants failed to investigate Dr. Pettine’s reports, failed to duplicate the tests he had performed, and failed to warn treating physicians as learned intermediaries of the fracture problem.

       Notice of this sort contemplates the necessity for direct notice to a known recipient, notice to hospitals or health care providers supplying the product, the surgeons involved, if known (and, if not known, then all surgeons) by advertising in the medical journals of all colleges of surgery, notice to all primary care physicians through advertisement in their professional journal or journals, or any other exercise of ordinary care required to give actual notice to the patient taking a prescribed medication or who is the recipient of a prescription implant.


author:
Andrews, Presiding Judge.
      Eldridge, Judge,

text:
    A01A0284.
    NAVARRO v. ATLANTA CASUALTY COMPANY.
    (552 SE2d 508)
   Andrews, Presiding Judge.

Navarro appeals from the trial court’s grant of summary judgment to Atlanta Casualty Company, the uninsured motorist carrier for Smith, the owner/driver of the truck in which Navarro was riding when it was struck by an unidentified motorist. Summary judgment was granted because no immediate report of the accident was made to police on March 23, 1997, the date of the accident, as required by OCGA § 40-6-273.

It is not contested that no report was made by either Smith or Navarro to the local police until four or five days following the late night accident. There is also no question that OCGA § 33-7-11 (c) requires that, if the owner or operator of the vehicle causing property or personal damage is unknown, “the insured, or someone on his behalf, ... in order for the insured to recover under the endorsement, shall report the accident as required by Code Section 40-6-273.” (Emphasis supplied.) Code section 40-6-273 requires that “[t]he driver of a vehicle involved in an accident resulting in injury . . . shall immediately, by the quickest means of communication, give notice of such accident to the local police department. . . .” (Emphasis supplied.)

It is not necessary, as the dissent has done, to engage in extensive historical analysis of these statutes. Rather, one need only consider the plain language emphasized above. Williams v. Dept. of Human Resources, 272 Ga. 624, 625 (532 SE2d 401) (2000). “Immediately” and “quickest” cannot be stretched to include four or five days later.

Also, the dissent’s position that compliance with the notice provision is merely a matter of abatement and not a condition precedent to recovery under uninsured motorist coverage is premised primarily on Jones v. Doe, 143 Ga. App. 451 (238 SE2d 555) (1977), and is untenable because Jones involved a totally different statutory scheme. The statute involved there, Code Ann. § 92A-604, allowed an official police report to be filed up to ten days after an accident, and even later if the person could not comply within ten days. Code Ann. § 92A-9918 provided a fine and license suspension for failure to file an official report “‘until such report has been filed. . . .’” Jones, supra at 452. Based on these unique features of these two statutes, this Court concluded that an individual failing to file the report within the allotted time “may achieve full compliance with this chapter by filing such report at any time thereafter.” Id. Thus, the ability to pursue civil action was merely abated until the filing of the report, unless the statute of limitation had rim. Id.

Here, on the other hand, there is no such window of opportunity for notifying the police. It must be done immediately, by the quickest means possible. Such a requirement is not a matter of abatement, but a condition precedent to recovery under uninsured motorist coverage. See Dover v. City of Jackson, 246 Ga. App. 524, 526 (541 SE2d 92) (2000).

Therefore, Navarro having failed to satisfy the requisite condition precedent to recovery under Smith’s uninsured motorist policy, the trial court properly granted summary judgment to Atlanta Casualty Company.

Judgment affirmed.

Johnson, P. J, Smith, P. J, Ruffin, Miller and Ellington, JJ, concur. Eldridge, J., dissents.

Eldridge, Judge,

dissenting.

On March 23, 1997, plaintiff was a passenger in a large pickup truck operated by Smith on private property waiting in line to exit the parking lot around midnight when an unknown driver backed a smaller pickup truck into the passenger door of Smith’s vehicle and left the scene, leaving a dent in the door. Immediately after the collision, the plaintiff did not feel as if she had been injured, only shaken up. However, plaintiff realized the next day that she had suffered a bruise between her shoulder blades and went to the doctor the next week to see if her prior back fusion had been damaged. She received an aggravation of a preexisting injury. Neither she nor Smith reported the accident to the police immediately after it occurred under OCGA § 40-6-273. On March 27 or 28, 1997, Smith orally reported the accident to the City of Helen Police Department, but they refused to make out a written report or to allow him to do so, because he had not reported the incident when it occurred.

OCGA § 40-6-273 states: “The driver of a vehicle involved in an accident resulting in injury to or death of any person or property damage to an apparent extent of $500.00 or more shall immediately, by the quickest means of communication, give notice of such accident to the local police department if such accident occurs within a municipality.”

Ga. L. 1953, Nov.-Dee. Sess., pp. 556, 574, § 45 (OCGA § 40-6-273) created the duty of drivers to immediately make an accident report to the appropriate law enforcement agency when there is $25 or more of property damage, death, or injury, but also requires reporting within 15 days on a uniform form to the Department of Public Safety in compliance with the Motor Vehicle Safety Responsibility Act. OCGA §§ 40-6-273; 40-9-30. Subsequently, the minimum damage was increased to $500, so that the police are relieved of the duty to investigate immediately minor accidents, which could be reported later. Ga. L. 1978, p. 1494, § 1; Ga. L. 1994, pp. 363, 364, § 1; OCGA § 40-6-274. The descriptive title to Ga. L. 1994, p. 363, states that the amendment was “to increase the minimum amount of property damage which must be present as a condition of a police investigation of a motor vehicle accident.” Thus, immediate reporting of accidents was intended to permit police investigations to take place where death, injury, or apparent serious property damage has taken place at the time of the occurrence, when such an investigation would be productive as enforcement of the traffic code as a criminal violation. In 1994, the deletion of the requirement for financial liability reporting from OCGA § 40-6-273 makes it clear that tort liability is not the purpose of reporting under the Act but is for law enforcement purposes only. Ga. L. 1994, pp. 97, 107, § 33 (1). Thus, OCGA § 40-6-273 makes no provision for reporting subsequently when such conditions for reporting become apparent at a later date or where the driver is incapable of making such immediate report. However, OCGA § 40-6-274 provides an exemption from immediately reporting where there is no known injury or damage to another’s property, but requires subsequent reporting of the information under OCGA § 40-6-278. Ga. L. 1972, p. 819, § 1.

The uninsured motorist provisions of automobile liability policies provide under OCGA § 33-7-11 (c) when the other driver is unknown:

[i]f the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, the insured, or someone on his behalf, or in the event of a death claim someone on behalf of the party having the claim, in order for the insured to recover under the endorsement, shall report the accident as required by Code Section 40-6-273.

As originally passed, OCGA § 33-6-11 (c) did not require compliance with OCGA § 40-6-273, but required reporting in compliance with the Motor Vehicle Safety Responsibility Act, OCGA § 40-9-30, of the unknown driver. Ga. L. 1963, pp. 588, 590, § 1; Ga. L. 1964, pp. 306, 308, § 1. In Ga. L. 1993, pp. 938, 939, §§ 1, 2, both the Uninsured Motorist Act and the Safety Responsibility Act were amended requiring compliance with subsection (c) of the Uninsured Motorist Act. OCGA § 33-7-11 (b) (2). However, in Ga. L. 1994, pp. 97,107, § 33 (1), both OCGA §§ 40-9-30 and 40-9-32 were deleted from OCGA § 33-7-11 (c), and OCGA § 40-6-273 was substituted in place of such other Code sections, regarding duty to report an accident; this same amendment also deleted the Safety Responsibility Act from the duty to report under OCGA § 40-6-273, leaving the requirement only of the reporting to the local police of an accident and no longer requiring a report to the Director of the Department of Public Safety under OCGA § 33-7-11 (c), because such would be a futile action. Ga. L. 1994, pp. 97, 107, 111, §§ 33 (1), 40 (20).

Thus, the 1994 amendments to OCGA §§ 33-7-11 (c) and 40-6-273 changed the intent of the General Assembly in the driver reporting from motor vehicle safety responsibility to the Department of Public Safety to the law enforcement agency, alone. Prior to the 1994 amendments, failure to report did not constitute a defense in bar on the merits of the claim, but acted as an abatement of the action until the report under the Motor Vehicle Safety Responsibility Act had been complied with by the plaintiff. Jones v. Doe, 143 Ga. App. 451, 452 (238 SE2d 555) (1977); Doe v. Moss, 120 Ga. App. 762, 766-767 (6) (172 SE2d 321) (1969); see, e.g., summary judgment not appropriate for defenses in abatement, Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615 (208 SE2d 459) (1974); Dunn v. Ceccarelli, 239 Ga. App. 687-688, n. 1 (521 SE2d 237) (1999); McGregor v. Stachel, 200 Ga. App. 324 (1) (408 SE2d 118) (1991). The purpose of OCGA § 33-7-11 (c) is two-fold: first, to enable a timely police investigation of a hit and ran driver; and, secondly, to require a report be made to a law enforcement agency under criminal sanctions. Even if the police cannot immediately investigate the accident caused by a phantom hit and ran driver, then filing such report with the police may act as deterrence to the filing of false claims under the Uninsured Motorist Act, because to make a false report to a law enforcement agency is a crime, as well as a fraudulent claim. OCGA § 16-10-26.

All of these interrelated statutes must be construed in pari materia to determine the intent of the General Assembly. Further, “[u]ninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose. [Cits.]” Smith v. Commercial Union Assurance Co., 246 Ga. 50, 51 (268 SE2d 632) (1980). The purpose of uninsured motorist legislation is to require that first-party insurance coverage be offered “to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers.” (Citation and punctuation omitted.) Id. If failure of the driver to immediately report bars recovery, then such purposes for uninsured motorist insurance are thwarted.

Therefore, a jury question exists whether Smith was exempt from immediate notification of the police, because he believed that there had been no injury and that property damage was less than $500 and thus had substantially complied with the condition precedent to immediate reporting to the police by subsequently reporting the accident within a reasonable time. See OCGA §§ 40-6-273; 40-6-274. For purposes of OCGA § 33-7-11 (c), we must construe both OCGA §§ 40-6-273 and 40-6-274 in pari materia, because the victim may be incapable of immediately reporting or may not realize that he is injured at the time of the accident, or their driver may have violated his duty to report, which under the construction of the Uninsured Motorist Act, such failure should not be imputed to the victim. Further, in construing OCGA § 33-7-11 (c), we must consider whether the delay of only several days constituted substantial compliance with the Uninsured Motorist Act where no vested rights were affected. See OCGA § 1-3-1 (c); Rolleston v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 405 (523 SE2d 600) (1999); Health Horizons v. State Farm &c. Ins. Co., 239 Ga. App. 440 (521 SE2d 383) (1999).

In any event, this Court has held that the failure to comply with the reporting under OCGA § 40-6-273 cannot be the basis for summary judgment under OCGA § 33-7-11 (c), because such failure to report acts only as an abatement of the action on the claim until the proper report has been made by someone. Jones v. Doe, supra at 452. While this decision was rendered prior to the 1994 amendment by the General Assembly and applied to a different report than is now required under the Uninsured Motorist Act, this amendment is “presumed to be enacted . . . with full knowledge of the existing condition of the law, including decisions of the courts. [Cit.]” Chrysler Corp. v. Batten, 264 Ga. 723, 727 (4) (450 SE2d 208) (1994); see also Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1, 9 (3) (178 SE2d 868) (1970). This maxim of statutory construction also applies to amendments of existing law. Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 700-701 (10 SE2d 375) (1940). Use of this same construction of the existing statute furthers the intent of the Uninsured Motorist Act without harm to the other statutes.

Decided July 13, 2001.

Benedict & Spiegel, Noel H. Benedict, for appellant.

Seacrest, Karesh, Tate & Bicknese, Karsten Bicknese, Annarita M. Busbee, for appellee.


author: Phipps, Judge. Ruffin, Judge, Eldridge, Judge, Mikell, Judge,

text:
    A01A0485.
    VOGLESON v. THE STATE.
    (552 SE2d 513)
   Phipps, Judge.

A jury found Owen Vogleson guilty of trafficking in cocaine and violating the Georgia Controlled Substances Act for possession of cocaine with intent to distribute. His co-defendant negotiated a reduction in sentence in exchange for his testimony against Vogleson. Vogleson claims that the trial court erred by denying him his constitutional right to cross-examine his co-defendant about the mandatory minimum sentence the co-defendant was facing before he agreed to testify against Vogleson. He also claims that the only evidence linking him to the crimes was the uncorroborated testimony of his co-defendant, which was insufficient to support his convictions. Although we find that the evidence was sufficient to support Vogleson’s convictions, we reverse because we find that the trial court erred by limiting Vogleson’s cross-examination of his co-defendant.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Viewed in that light, the evidence shows that on April 26, 1999, DeKalb County Police Detective Franklin received a tip from a confidential informant that a white Jeep Cherokee, license tag number 324 JLC, could be found immediately in the area of Redan Road and Covington Highway and that the Jeep would be carrying a large amount of illegal drugs. The informant told Franklin that the Jeep would be occupied by two black males. When he received the tip, Franklin notified uniformed officers Becker and Frank that he would be moving into the area.

When he reached the area, Franklin observed the Jeep and was able to confirm the license tag number, the race and gender of the driver and the race of the passenger. The passenger had his seat reclined, making it difficult for Franklin to determine his gender. Franklin eventually was able to determine that the passenger was male. Franklin testified that the driver repeatedly looked into his side view and rear view mirrors and turned around in his seat to watch the vehicles following him. Franklin notified Officers Becker and Frank of his observations and of the Jeep’s location.

Officer Becker located the Jeep, drove behind it and activated his blue lights. When the Jeep stopped, Becker, speaking through his public address system, asked the driver, whom he identified as Wilson, to get out and go to the rear of the vehicle. Wilson complied with that request and with Becker’s request for his driver’s license. Becker asked Wilson if there were any guns in the vehicle, and Wilson said, “yes.” Wilson told Becker that there was a gun under the driver’s seat. After patting Wilson down, Becker went to the driver’s side of the vehicle, looked under the driver’s seat and found a gun and a bag of marijuana. When Wilson acknowledged that the gun and marijuana belonged to him, Becker placed him under arrest.

Becker then approached the passenger, whom he identified as Vogleson, and instructed him to exit the Jeep. After Vogleson exited, Becker asked Officer Frank to conduct an open air search of the vehicle. Frank walked his dog (trained in the detection of narcotics) around the outside of the vehicle. The dog “alerted” on the front driver’s side and the front passenger’s side of the vehicle and again in those areas and the backseat when he entered the vehicle. The officers found two bags containing almost two kilograms of cocaine on the front passenger floorboard and a large amount of marijuana under the backseat.

At trial, Wilson testified to the following. His involvement in the buying and selling of cocaine was limited to connecting suppliers with potential purchasers, thereby earning a “finder’s fee.” Vogleson had cocaine he needed to sell, and a friend (the informant) had told Wilson he was interested in buying up to five kilograms. On April 26, 1999, Wilson and Vogleson met to sell the cocaine. At Vogleson’s suggestion, they went to a restaurant on Covington Highway to get something to eat. Vogleson went into the restaurant and talked to someone who had entered the restaurant carrying a box. When Vogleson exited the restaurant, he was carrying a white plastic grocery bag, which contained food and two kilograms of cocaine. In the car, Vogleson gave Wilson the food, showed him the cocaine and placed the bag containing the cocaine under his leg. They then left the restaurant and headed in the direction of Wilson’s friend’s house to sell him the cocaine.

1. Vogleson claims that the trial court committed reversible error by denying him the right to cross-examine Wilson about the mandatory minimum sentence for trafficking in cocaine. He argues that he was denied his constitutional right to explore Wilson’s bias as a witness.

On direct examination, Wilson admitted that he received a deal from the State in exchange for his testimony in this case, including a recommendation for a reduction in sentence that would require him to serve ten years in prison. On cross-examination, the following transpired:

VOGLESON’S ATTORNEY: And so you are going to plead guilty to a reduced charge of possession with intent to distribute the cocaine?
WILSON: Yes.
VOGLESON’S ATTORNEY: But you want this jury to believe that the cocaine belonged to Mr. Vogleson?
WILSON: That’s who it belonged to. . . .
VOGLESON’S ATTORNEY: By pleading guilty to the possession with intent to distribute you save yourself from getting a mandatory —.
THE COURT: We don’t talk about mandatory sentences. We don’t talk about any of that stuff.
VOGLESON’S ATTORNEY: Okay. You are saving yourself 15 years, aren’t you?

Before Wilson could answer, the trial judge admonished Vogleson’s attorney for disregarding his instruction. Vogleson’s attorney then asked additional questions on other subjects designed to explore Wilson’s bias.

Vogleson argues that Hernandez v. State requires reversal. In Hernandez, we held that cross-examination of an accomplice regarding the deal he had made with the prosecution, including the potential sentence he could receive and the fact that he would not be eligible for parole, was constitutionally protected because it sought to show the witness’s motive, bias or interest in cooperating with the State and testifying against Hernandez. The fact that he faced a sentence without eligibility for parole, or a mandatory minimum sentence, gave him much more incentive to give favorable testimony.

The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” This guarantee applies to both federal and state criminal defendants. Implicit in the constitutional right of confrontation is the right of cross-examination, which is an essential and fundamental requirement for a fair trial.

“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Because the exposure of a witness’s motivation in testifying is an important function of the constitutionally protected right of cross-examination, the potential bias or partiality of a witness may always be explored at trial. “It is especially important in a case where a witness or an accomplice may have substantial reason to cooperate with the government that a defendant be permitted to search for an agreement between the government and the witness” and explore the details of any agreement.

Much of Wilson’s deal with the State was revealed on direct examination. But the trial court completely precluded any testimony regarding the sentence Wilson would have received if he had not reached a deal with the State and had been convicted of the crimes for which he was indicted. By doing so, the trial court prevented the jury from considering the most important aspect of Wilson’s deal — how much prison time he was avoiding by agreeing to cooperate with the State.

We think that a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby “to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.” [Cit.] [Vogleson] has met that burden here: A reasonable jury might have received a significantly different impression of [Wilson’s] credibility had [Vogleson’s] counsel been permitted to pursue his proposed . . . cross-examination.

Because the trial court denied Vogleson his constitutionally protected right to explore Wilson’s motive, bias and interest in cooperating with the State and testifying against Vogleson, we reverse.

We previously addressed restrictions on cross-examination of an accomplice in Whitlock v. State and Ross v. State. In Whitlock, an accomplice testified that he had pled guilty to certain charges, but had not made a deal with the State. Defense counsel wanted to show that the accomplice could have received a maximum sentence of eighty years imprisonment if he had been convicted of the crimes charged in the indictment but was given only a minimum sentence of ten years. The court allowed counsel to show the crimes with which the accomplice had been charged and the counts that were dismissed, and that he received the “minimum sentence” for the crimes to which he pled guilty even though he could have received a “substantial amount of time” on the charges. The court would not let counsel inform the jury of the lengths of the minimum and maximum sentences. We held that the limitation on cross-examination did not hamper Whitlock’s ability to challenge the accomplice’s credibility.

In Ross, defense counsel elicited the fact that an accomplice was facing a mandatory sentence of ten years for armed robbery and that by pleading guilty to robbery, he was able to reduce the sentence to seven years. We held that Ross’s ability to question his accomplice about his motive to lie was not improperly restricted by the trial court’s refusal to allow questions couched in the terms of “mandatory minimum sentence.”

We recognize the potential conflict between Hernandez on the one hand and Whitlock and Ross on the other. Because Hernandez more fully protects a defendant’s constitutional right of confrontation, we will follow it and disapprove of Whitlock and Ross only to the extent they suggest that it is not reversible error to preclude cross-examination of an accomplice regarding the deal he has reached with the State, including the disparity between the sentence the State will recommend in exchange for the accomplice’s cooperation and the sentence he would have received without that cooperation.

The State argues that to the extent Hernandez permits cross-examination regarding mandatory minimum sentences, it conflicts with the Supreme Court of Georgia’s decision in Hodo v. State. There, the court held that Hodo’s constitutional right to confrontation was not violated when the trial court refused to allow him to question a State’s witness about the potential sentence the witness could face if prosecuted for the criminal conduct he admitted on the stand. Hodo was permitted to ask the witness if he realized that he could be prosecuted and about any benefit he expected to receive in exchange for his testimony.

We find Hodo distinguishable. The witness, a drug dealer, was not involved in the crimes being tried and had not been charged with any crime. Requiring such a witness to speculate about possible punishment for crimes with which he might be charged differs from requiring an accomplice to reveal the punishment he would receive if not for his deal with the State.

The dissent takes issue with our reliance on Hernandez to support reversal in this case. Although the issue arose in a different context in Hernandez, we nevertheless held as a basis for reversal that “[flinally, and perhaps most importantly, such cross-examination is proper because it is constitutionally protected.” We did not find the cross-examination was improper but held that any concerns held by the State regarding its scope could have been addressed by the court without resort to a mistrial. For example, the court could have instructed the jury that the cross-examination should not be considered for purposes of determining Hernandez’s guilt or innocence but only for judging the credibility of the witness. The same limiting instruction would have worked here as well.

2. We now address Vogleson’s challenge to the sufficiency of the evidence. An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Under Jackson v. Virginia, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Vogleson claims that the only evidence linking him to the cocaine came from Wilson. In fact, Wilson’s testimony was corroborated by the officers’ testimony that the cocaine was discovered on the floorboard of the passenger side of the car where Vogleson was sitting. The corroborating evidence tended to show Vogleson’s participation in the crimes and was therefore sufficient as a matter of law. We cannot say that no rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt.

Judgment reversed.

Pope, P. J., Johnson, P. J., Smith, P. J., and Barnes, J., concur. Ruffin and Miller, JJ., concur and concur specially. Blackburn, C. J, Andrews, P. J., Eldridge, Ellington and Mikell, JJ., dissent.

Ruffin, Judge,

concurring and concurring specially.

I fully concur with both the reasoning employed and the result reached by the majority. However, in view of the significance of the constitutional right at stake — the Sixth Amendment right of confrontation — I am compelled to enter the fray to voice my concern with the dissent’s position. (The reference to the dissent refers to Judge Eldridge’s dissent.)

The importance of the Sixth Amendment right to confront witnesses cannot be overstated. The clarity and undeniability of that amendment are firm, and today we reaffirm our commitment to it. Embodied in this constitutional right is the ability to cross-examine one’s accusers. As the United States Supreme Court has made clear, “[t]he opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.” Such pointed “[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” And, “while cross-examination does not guarantee truth, it will, hopefully, make untruth more difficult.” Given the reality that this fundamental right is integral to the truth-seeking process, we should zealously guard against its unnecessary abrogation. Popular notions to the contrary, truth still remains at the epicenter of our judicial system.

Here, the dissent states unequivocally that “[t]he injection of [sentencing] in a jury’s deliberation as to guilt or innocence is improper.” Context is key, and the dissent recontextualizes the scenario. The cases cited by the dissent only involve the injection of the defendant’s possible punishment into the trial — not the possible punishment of a State’s witness. Thus, contrary to the dissent’s suggestion, there is no hard and fast rule that it is improper to inject the issue of a witness’ possible punishment.

In two cases this Court has ruled that the trial court did not abuse its discretion in limiting the cross-examination of a State’s witness regarding the minimum or maximum punishment that the witness avoided by striking a deal with the State. This Court did so because a trial court “retains wide latitude to impose reasonable limits on cross-examination, based on such concerns as the prevention of prejudice and of questioning on subjects that are only marginally relevant.” I see no reason to limit a defendant’s ability to impeach a State’s witness by delving into the exact nature of the deal that the witness made with the State. Indeed, such bias in a witness “is always relevant as discrediting the witness and affecting the weight of his testimony.” And, unlike the dissent, I do not believe that oblique references to “lengthy sentences” carry the same weight as evidence that the accomplice-witness “saved himself” a minimum of 15 years by virtue of reaching a deal with the State. Accordingly, I agree with the majority that those two cases must be disapproved in order that a better, more reasonable rule be established.

The dissent is evidently troubled by the fact that, in addressing the accomplice’s potential sentence had he not pled guilty, the jury would inadvertently be informed of the possible sentence that the defendant faced as both had been charged with the same crime. Indeed, I acknowledge that tension exists between the defendant’s right to thoroughly cross-examine an accomplice-witness to establish bias and the defendant’s right to a bifurcated trial, in which his punishment is not addressed until his guilt is established. But these rights inure to the defendant’s benefit. Thus, it should be the defendant’s decision to choose to exercise one right to the detriment of another.

Even if the bifurcated trial does inure to the State’s benefit, also, I do not believe that such interest justifies abrogating a defendant’s Sixth Amendment right to thoroughly cross-examine the witnesses against him. Rather, I believe that “[t]he State’s policy interest in [preserving the bifurcated process] cannot require [the] yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness.”

Finally, I disagree with the dissent’s contention that any error was harmless. Although Vogleson’s attorney did ask whether the accomplice “saved himself” 15 years by pleading guilty, the trial court did not allow the accomplice to answer the question. Even assuming that the jury could infer that the answer would have been affirmative, I do not believe a defendant should be forced to impeach a crucial witness inferentially. To the contrary, a defendant retains the right to establish the exact nature and extent of any bias on the part of a State’s witness, which includes the ability to delve into the details of the deal reached with the State. To hold otherwise would greatly erode the effectiveness of the fundamental constitutional right of confrontation. Hence, I concur with the majority.

I am authorized to state that Judge Miller joins in this concurrence and special concurrence.

Eldridge, Judge,

dissenting.

1. Vogleson did not object to the trial court’s ruling that he was not to go into mandatory minimum sentencing requirements. His only response to the court’s ruling was to state, “Okay,” and then to inform the jury anyway that Damon Wilson had saved himself 15 years by pleading to a lesser offense than trafficking. Vogleson “cannot submit to the ruling or otherwise acquiesce in the holding or response and then complain of the same on appeal; he must stand his ground.” There is no basis for reversal since this issue is waived.

2. The jury was informed that Vogleson’s co-defendant, Wilson, received ten years to serve pursuant to a plea to a lesser offense than the trafficking for which he was co-indicted. On cross-examination, the trial court ruled only that Vogleson could not bring out the mandatory minimum sentence Wilson would have gotten for trafficking had he not pled: ‘We don’t talk about mandatory sentences. We don’t talk about that stuff.”

Vogleson’s lawyer, however, disregarded the trial court’s ruling and stated before the jury that “You [Wilson] are saving yourself 15 years, aren’t you?” The trial court did not strike the question, but reinforced defense counsel’s assertion by immediately declaring before the jury that counsel had “completely disregarded” the court’s ruling not to go into the mandatory minimum sentence.

In fact, the mandatory minimum sentence for trafficking in the indicted amount of cocaine is 25 years. While the majority dismisses defense counsel’s question as “not evidence,” that view ignores the realities of the courtroom wherein a jury can and does consider the implications contained in a statement of fact masquerading as a “question.” This reality has been the basis for many a motion for mistrial, corrective instruction, and reversal. No. Vogleson’s lawyer rang that bell, and the average juror can add the ten years Wilson received and the fifteen years defense counsel informed them Wilson “saved himself” in order to arrive at the mandatory minimum sentence. Pretermitting error, Vogleson made his point to the jury about the discrepancy between the specific amount of time Wilson received and the specific amount of time he avoided — which point was reinforced by the trial court. Accordingly, there is no requisite showing of harm, and Vogleson’s claim of error provides no basis for reversal of his criminal conviction.

3. The injection of sentence in a jury’s deliberation as to guilt or innocence is improper. It is error to instruct the jury as to a possible sentence in a felony case before the jury has determined the question of guilt or innocence. In most cases, an accomplice is indicted, either directly or as a party, for the same offenses as the defendant and is facing the same sentencing provisions for those offenses. Thus, introduction of testimony about the specific mandatory minimum sentence the accomplice avoided via a plea to a lesser offense lets the jury know the specific sentence the defendant will receive if a verdict of guilty is returned on the indicted charge.

So too, in this case, Wilson was indicted for the same trafficking offense as Vogleson. Had he not pled guilty to a lesser offense, Wilson was facing the same mandatory minimum sentence for trafficking that Vogleson faced during trial. The single cross-examination question in dispute, while in the guise of an exposé of bias, would have permitted the injection of the specific mandatory sentence for trafficking into the jury’s deliberations of Vogleson’s guilt or innocence of that offense. This is error.

Further, I question the majority’s contention that the specific amount of prison time avoided was “the most important aspect of Wilson’s deal.” The purpose of Vogleson’s cross-examination was to demonstrate a motive for Wilson to take the stand and say damaging things about him on behalf of the State. To that end, Vogleson does not argue and nothing compels the conclusion that a reasonable jury might have received a significantly different impression of Wilson’s credibility had they been informed that Wilson avoided “fifteen years,” as opposed to “a very lengthy prison sentence” or “years and years of jail time.” In this case, the issue is that Wilson avoided significant jail time in exchange for testimony. The issue is not the specific amount of the significant jail time he avoided. The addition of the latter information serves only to inform the jury that Vogleson will receive such jail time if convicted, even though Wilson did not. This is error.

4. Finally, there is no conflict between Hernandez v. State and the cases sought to be disapproved by the majority. In that regard, it is not only important, it is determinative to recognize the posture in which Hernandez came to us:

Hernandez was not an appeal from a criminal conviction with an enumeration of error claiming defendant was denied his constitutional right to a thorough and sifting cross-examination, as in this case. Hernandez was an appeal from the trial court’s denial of a plea in bar of double jeopardy.

The issue in Hernandez was not the scope of the right to cross-examine, as in this case. It was whether a cross-examination question which violated a trial court’s ruling justified the granting of a State’s mistrial motion on the basis of “manifest necessity”: “the manifest necessity for a mistrial can exist alongside less drastic alternatives, so long as the record discloses that the trial court considered alternatives before declaring mistrial.”

And so, in Hernandez, we examined the basis for the State’s mistrial motion as demonstrating a manifest necessity therefor:

During the jury trial, Hernandez cross-examined his co-defendant, Diaz, about Diaz’s prior negotiated plea to a lesser offense and reduced sentence in exchange for State’s testimony. This questioning went without objection. Hernandez then asked Diaz if, by his plea, he had avoided a specific mandatory minimum sentence. The State moved for mistrial specifically based on a violation of OCGA § 17-8-76 and claimed manifest necessity. Mistrial was granted on such basis without considering alternatives, because the “prosecutor simply did not know what th[e] remedy would be.”

On appeal of the denial of Hernandez’s subsequent plea in bar, we found no manifest necessity for mistrial. In so doing, we held: (a) that defense counsel’s questioning did not violate OCGA § 17-8-76. “OCGA § 17-8-76 prohibits only argument that a defendant may not serve the full amount of his sentence; it does not prohibit even making argument in this regard concerning a witness”-, (b) that questioning an accomplice about his deal with the State is a constitutionally protected form of cross-examination: “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination”; and (c) that, within the context of the constitutionally protected cross-examination, the State could have addressed its concerns about revealing mandatory minimum sentencing by “mov[ing] in limine to limit cross-examination. If genuine concerns existed they could have been addressed by establishing proper boundaries or by carefully instructing the jury.” These alternatives were not even considered in Hernandez. So, we found that a “manifest necessity” for mistrial was not shown: “the cross-examination was proper and . . . the prosecutor’s concerns could have been alleviated short of a mistrial [. N]o such manifest necessity existed here.”

Thus, contrary to the majority’s assertion, we did not hold in Hernandez that a defendant has a “constitutional right” to inject sentencing considerations into the jury’s deliberations and reveal the mandatory minimum sentence an accomplice would have received. Instead, we determined that a cross-examination question as to a mandatory minimum sentence was properly subject to a pretrial motion in limine or, if asked during trial, subject to a corrective instruction, which actions were not taken by the State. As such, Hernandez offers no “additional protection” to a defendant’s constitutional right of confrontation so as to warrant reversal of Whitlock v. State and Ross v. State. A cross-examination question about a specific mandatory minimum sentence is improper under all three cases.

As the single cross-examination question about which Vogleson complains could have been excluded in limine pursuant to Hernandez, it follows that the trial court’s exclusion of such question during the trial of this case does not demonstrate an abuse of discretion: “[t]he trial court. . . retains wide latitude to impose reasonable limits on cross-examination, based on such concerns as the prevention of prejudice and of questioning on subjects that are only marginally relevant.” Here, multiple cross-examination questions about Wilson’s plea to a lesser offense and reduced sentence in exchange for State’s testimony were permitted. As noted by the majority, “[m]uch of Wilson’s deal with the State was revealed.” In this case, “the transcript is clear that the trial court restricted him only from asking questions couched in terms of ‘mandatory minimum sentence.’ [Vogleson] was free to question the co-defendant [ ] as to [his] understanding of the possible sentence, as long as the jury was not informed of the mandatory minimum sentence for [trafficking] .”

In sum, the issue upon which the majority reverses was waived by Vogleson’s failure to object to the trial court’s ruling. Further, the information about which Vogleson complains was put before the jury despite the trial court’s ruling. Finally, under Hernandez, Ross, and Whitlock, the single question about the mandatory sentence Wilson would have received was properly kept out as an injection of punishment for the indicted crime. Thus, reversal of neither judgment nor precedent is warranted.

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

Mikell, Judge,

dissenting.

I respectfully dissent because I cannot distinguish the case at bar from our Supreme Court’s decision in Hodo v. State, 272 Ga. 272 (528 SE2d 250) (2000). In Hodo, the witness whom the defendant was not allowed fully to cross-examine, an admitted drug dealer, was not an accomplice but had admitted to criminal conduct on the stand. Id. at 274 (3). In the present case, the witness was an accomplice in the crimes being tried. Nonetheless, both witnesses had large incentives to testify favorably to the state. Hodo held that a defendant’s right of confrontation was not violated by the trial court’s refusal to allow questions about the potential sentence the witness could face because of his criminal conduct. To be sure, the witness in Hodo would be speculating about what sentences he might receive for crimes with which he might be charged. And the witness in this case may not know the mandatory minimum sentences or the maximum possible sentences. But the constitutional issue concerns what questions counsel may ask, not the accuracy of the answers he might receive.

Decided July 13, 2001

Sara M. Yeager, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Jennifer M. Daniels, Robert M. Coker, Assistant District Attorneys, for appellee.

The majority in the case at bar may be correct that questions about mandatory minimum sentences for crimes with which the witness is charged, or could be charged, should be permitted. But we must follow Hodo until and unless the Supreme Court reconsiders its holding. Thus I would vote to affirm.

I am authorized to state that Judge Ellington joins in this dissent.

       We affirmed the conviction of his co-defendant. Wilson v. State, 249 Ga. App. 560 (549 SE2d 418) (2001).

        Newman v. State, 233 Ga. App. 794 (1) (504 SE2d 476) (1998).

       244 Ga. App. 874 (537 SE2d 149) (2000).

       Id. at 876-877 (1) (c).

        Pointer v. Texas, 380 U. S. 400 (85 SC 1065, 13 LE2d 923) (1965).

        Chambers v. Mississippi, 410 U. S. 284, 295 (93 SC 1038, 35 LE2d 297) (1973).

        Davis v. Alaska, 415 U. S. 308, 316 (94 SC 1105, 39 LE2d 347) (1974).

       Id.

       (Citation and punctuation omitted.) Hines v. State, 249 Ga. 257, 260 (2) (290 SE2d 911) (1982).

        Delaware v. Van Arsdall, 475 U. S. 673, 680 (106 SC 1431, 89 LE2d 674) (1986).

        Hernandez, 244 Ga. App. at 877.

       239 Ga. App. 763, 765-766 (2) (521 SE2d 901) (1999).

       231 Ga. App. 506, 509 (3) (499 SE2d 351) (1998).

       239 Ga. App. at 766.

       231 Ga. App. at 509 (3).

       Id.

       272 Ga. 272, 274-275 (4) (528 SE2d 250) (2000).

       244 Ga. App. at 876-877 (1) (c).

       Id. at 877.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       See id.

       (Punctuation omitted.) Davis v. Alaska, 415 U. S. 308, 316 (94 SC 1105, 39 LE2d 347) (1974).

       Id. at 316.

        Farley v. State, 225 Ga. App. 687, 696 (484 SE2d 711) (1997) (Ruffin, J., concurring specially).

       See Bellamy v. State, 272 Ga. 157, 159 (4) (527 SE2d 867) (2000); Ford v. State, 232 Ga. 511, 518 (14) (207 SE2d 494) (1974); Green v. State, 206 Ga. App. 539, 541 (2) (426 SE2d 65) (1992).

       See Whitlock v. State, 239 Ga. App. 763, 765-766 (2) (521 SE2d 901) (1999); Ross v. State, 231 Ga. App. 506, 509 (3) (499 SE2d 351) (1998).

       (Emphasis supplied.) Whitlock, supra at 766.

       (Punctuation omitted.) Davis, supra at 316.

       See OCGA § 17-10-2 (a). See also Ford, supra.

        Davis, supra at 320.

        Wilburn v. State, 199 Ga. App. 667, 669 (2) (405 SE2d 889) (1991). See also Cox v. State, 242 Ga. App. 334, 339 (10) (528 SE2d 871) (2000); James v. Tyler, 215 Ga. App. 479, 480-481 (451 SE2d 506) (1994); Warsham v. State, 200 Ga. App. 322 (2) (408 SE2d 122) (1991).

       OCGA § 16-13-31 (a) (1) (C).

       See, e.g., King v. State, 273 Ga. 258, 273 (30) (539 SE2d 783) (2000); Goss Bros. Trucking v. Ashley, 228 Ga. App. 354, 356 (492 SE2d 7) (1997); Willett v. State, 223 Ga. App. 866, 868 (1) (479 SE2d 132) (1996).

        Copeland v. State, 235 Ga. App. 682, 685 (2) (b) (510 SE2d 124) (1998). See also Sanders v. State, 181 Ga. App. 117, 121-122 (3) (351 SE2d 666) (1986).

        Green v. State, 206 Ga. App. 539, 541 (2) (426 SE2d 65) (1992).

        Bellamy v. State, 272 Ga. 157, 159 (4) (527 SE2d 867) (2000); Ford v. State, 232 Ga. 511, 518-519 (14) (207 SE2d 494) (1974).

        Fletcher v. State, 197 Ga. App. 112, 113 (3) (397 SE2d 605) (1990). See Bellamy v. State, supra at 159.

       244 Ga. App. 874 (537 SE2d 149) (2000).

        Whitlock v. State, 239 Ga. App. 763, 766 (2) (521 SE2d 901) (1999); Ross v. State, 231 Ga. App. 506, 509 (3) (499 SE2d 351) (1998).

       (Citation and punctuation omitted.) Banks v. State, 230 Ga. App. 258, 263, fn. 27 (495 SE2d 877) (1998).

         No attorney at law in a criminal case shall argue to or in the presence of the jury that a defendant, if convicted, may not be required to suffer the full penalty imposed by.the court or jury because pardon, parole, or clemency of any nature may be granted by the Governor, the State Board of Pardons and Paroles, or other proper authority vested with the right to grant clemency.
      OCGA § 17-8-76 (a).

        Hernandez v. State, supra at 875.

       (Emphasis in original.) Id. at 876 (1).

       (Punctuation omitted.) Id. at 877 (1) (c).

       Id.

       Id. at 878 (2).

       Id. at 878, citing Steele v. State, 181 Ga. App. 695, 696 (1) (353 SE2d 612) (1987) (curative instructions suffice when sentencing issues improperly interjected during trial).

        Whitlock v. State, supra at 766 (2).

       See Ross v. State, supra at 509 (3). See also Hodo v. State, 272 Ga. 272, 275 (528 SE2d 250) (2000).


author: Johnson, Presiding Judge.

text:
    A01A0894.
    HAMILTON v. THE STATE.
    (552 SE2d 511)
   Johnson, Presiding Judge.

Richard Hamilton was convicted of selling cocaine and distributing cocaine within 1,000 feet of a public housing project. He appeals, arguing that the evidence is insufficient to support the convictions because of conflicts in the witnesses’ testimony. Hamilton’s argument is without merit, and we therefore affirm his convictions.

On appeal, this court must view the evidence in the light most favorable to the verdict, and we no longer presume that the appellant is innocent. We determine the sufficiency, not the weight, of the evidence. And we do not judge the credibility of the witnesses.

Viewed in the light most favorable to the verdict, the evidence in the instant case shows that a City of Calhoun police detective used a confidential informant to buy drugs near the City’s public housing project. The detective equipped the informant with a tape recorder and gave him $20. The informant then drove his pickup truck to the housing project area where he encountered Hamilton, who is the informant’s cousin and whom the informant has known for many years. The informant asked Hamilton if he had anything, and Hamilton got into the informant’s truck. Inside the truck, Hamilton gave the informant one “rock” of crack cocaine, and the informant gave Hamilton $20.

Decided July 13, 2001.

William R. Thompson, Jr., for appellant.

T. Joseph Campbell, District Attorney, Donald S. Smith, Assistant District Attorney, for appellee.

Hamilton then got out of the truck, and the informant drove to meet with the detective. The informant gave the tape and the cocaine to the detective. He also told the detective that he had bought the cocaine from Hamilton, and that Hamilton was wearing blue jeans, a black shirt and a white baseball cap.

The detective, who has known Hamilton for ten years, immediately drove to the housing project area, where he saw Hamilton wearing the clothes described by the informant. The detective later determined that the location of the drug sale is approximately 420 feet from the City’s public housing project. About two months after the drug sale, the detective arrested Hamilton pursuant to an arrest warrant.

“Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” Here, the jury was authorized to resolve any conflicts in the evidence and find that Hamilton is guilty beyond a reasonable doubt of selling cocaine and of distributing cocaine within 1,000 feet of a public housing project. We therefore uphold his convictions.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Watkins v. State, 241 Ga. App. 251, 253 (3) (526 SE2d 155) (1999).

       Id.

       Id.

        Whitehill v. State, 247 Ga. App. 267-268 (543 SE2d 470) (2000).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Spear v. State, 228 Ga. App. 112, 113 (1) (491 SE2d 164) (1997).


text:
    A01A1150.
    AFLAC, INC. et al. v. HARDY.
    (552 SE2d 505)
   Ruffin, Judge.

Patsy Hardy, an AFLAC, Inc. employee, began experiencing chest pain while at work, and she was taken to a hospital where it was discovered that she had suffered a heart attack. Hardy filed a claim for workers’ compensation benefits, alleging that her heart attack had been caused, in part, by work-related stress. Following a hearing on the matter, the State Board of Workers’ Compensation awarded benefits, and this appeal ensued. For reasons that follow, we reverse.

Construed in the light most favorable to support the award of the State Board, the record demonstrates that Hardy worked for AFLAC as an invoice specialist, which required her to review and reconcile payments made under insurance policies. Hardy testified that she had difficulty with her job because “you were continually pushed to get things done quickly but accurately, and there was no way you could do it quickly and accurately.” Although Hardy enjoyed her work, she “was not happy with the pressure,” and she requested a transfer to a different job. According to Hardy, she told Sandra Summersgill, an employee in the human resources department, that her job was “killing” her. Hardy told Summersgill that she would take a cut in pay in exchange for a less stressful job, but she was not given a transfer.

On April 27, 1998, Hardy reported to work at 7:30 a.m. Approximately two hours later, she began feeling nauseous and dizzy, and she experienced chest pain. Hardy was taken by ambulance to a local hospital, where doctors discovered that she had suffered a heart attack. Hardy remained hospitalized for three days, during which time she underwent angioplasty to clear an artery that was ninety-nine percent occluded.

After being released from the hospital, Hardy was seen by Dr. Schwindt, who concluded that Hardy had “[p] remature coronary artery disease.” On May 18, 1998, Dr. Schwindt permitted Hardy to return to work, but noted that “patient needs less stressful environment and [she needs to] work xk day until 5-25-98.” When Hardy returned to work, she was given less work, but AFLAC did not move her to a less stressful position. Consequently, in June 1998, she took leave under the Family Medical Leave Act. In December 1998, while still on leave, Hardy received notice that her job with AFLAC had been terminated in September 1998.

Hardy filed a notice of claim with the State Board, asserting that she was entitled to income and medical benefits as a result of her heart attack. At the hearing, AFLAC tendered the report of Dr. Charles Wickliffe, who concluded that Hardy’s coronary disease had caused her heart attack, but that “[t]here is no evidence to support a conclusion that [Hardy’s] coronary artery disease was in any way related to her employment at AFLAC.” Hardy, on the other hand, tendered a report from Dr. Patricia Gruczak, who wrote that Hardy’s “stressful work environment cannot be clearly implicated; although, I must say it can play a role in exacerbating symptoms.”

OCGA § 34-9-1 (4) sets forth the injuries that are compensable under Georgia’s workers’ compensation law. This Code section provides, in pertinent part, that an injury shall not include “heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, stroke, or thrombosis unless it is shown by a preponderance of competent and credible evidence, which shall include medical evidence, that any of such conditions were attributable to the performance of the usual work of employment.” Thus, under the express language of this statute, a workers’ compensation claimant must produce some medical evidence to support a claim for benefits.

Here, AFLAC contends that the State Board erred in awarding benefits, arguing that Hardy failed to produce “sufficient ‘medical evidence’ ... to support an award of benefits.” On appeal, however, the question is not whether sufficient evidence supports the State Board’s finding that an injury is compensable, but whether any evidence supports such finding.

In the award of the administrative law judge (ALJ), which was adopted by the appellate division of the State Board, the ALJ concluded that Hardy met her burden of providing medical evidence “with the opinion of Dr. Patricia Gruzak [sic], . . . [who] states that [Hardy’s] stressful work environment played a role in exacerbating the employee’s premature coronary artery disease.” However, the ALJ paraphrased Gruczak’s report, which actually states that a stressful work environment “can play a role in exacerbating symptoms,” but could not be clearly implicated in causing Hardy’s premature atherosclerosis.

“It is well settled that work need be only a contributing factor to a heart injury in order for that injury to be compensable.” If, however, a heart injury merely becomes symptomatic at work, the symptoms themselves are not compensable. “It is always difficult in heart attack cases to draw the line between an injury to the heart that is caused by on-the-job exertion and an injury that pre-existed and merely manifested itself or became symptomatic during job exertion.” Hardy, as the claimant, bears the burden of establishing that her injury falls into the former category, rather than the latter.

In order to prevail, Hardy must provide some medical evidence that her work contributed either to her underlying coronary artery disease or to her April 1997 heart attack. Here, Dr. Gruczak’s report, the medical evidence upon which the ALJ expressly relied, clearly states that a stressful job such as Hardy’s “can play a role in exacerbating symptoms.” Such evidence does not meet Hardy’s burden of proof.

Dr. Gruczak does not state in her report that Hardy’s job did exacerbate her symptoms, but merely that work stress “can” do so. Such an equivocal statement merely raises the possibility that stress was a factor, which generally is insufficient to sustain a party’s burden of proof. Moreover, Gruczak’s report did not state that Hardy’s job could have contributed to her coronary artery disease, as the ALJ found in her award. To the contrary, the report simply said that Hardy’s job could exacerbate the symptoms of her coronary artery disease, which, in the case of heart disease, does not constitute a compensable injury. As the record is devoid of any medical evidence that Hardy’s job contributed to her underlying heart disease or to her heart attack, Hardy failed to carry her burden of proving entitlement to workers’ compensation benefits. It follows that the award of the State Board must be reversed.

Judgment reversed.

Johnson, P. J, and Ellington, J., concur.

Decided July 13, 2001

Saveli & Williams, Mark S. Gannon, Laurel C. Schmitt, for appellants.

William A. Byars, Neil C. Thom, for appellee.

       AFLAC appealed to the superior court, which did not issue a ruling within 60 days. Accordingly, the award of the State Board of Workers’ Compensation was affirmed as a matter of law. See OCGA § 34-9-105 (b). This Court then granted AFLAC’s application for discretionary appeal.

       See Olde South Custom Landscaping v. Mathis, 229 Ga. App. 316 (494 SE2d 14) (1997).

       OCGA § 34-9-1 (4).

       See Phillips Correctional Institute v. Yarbrough, 248 Ga. App. 693 (548 SE2d 424) (2001).

       See id. at 695. See also Mathis, supra (“ ‘It is axiomatic that the findings of the (Board), when supported by any evidence, are conclusive and binding, and that neither the superior court nor this court has any authority to substitute itself as a factfinding body in lieu of the Board.’ ”).

        Yarbrough, supra.

       See Carter v. Kansas City Fire &c. Ins. Co., 138 Ga. App. 601, 604 (226 SE2d 755) (1976) (“[H]eart disease, even though painful on the job, is not a compensable injury”).

       Id. at 603.

       Id. (“It was . . . incumbent on claimant to show that the heart attack was attributable to [her] work”).

       See OCGA § 34-9-1 (4).

       See La Cosecha, Inc. v. Hall, 246 Ga. App. 441, 444 (540 SE2d 659) (2000) (“Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.”) (punctuation omitted).

       See Carter, supra.

       See Sutton v. B & L Express, 215 Ga. App. 394, 396 (2) (450 SE2d 859) (1994) (claimant entitled to benefits only “if he could show his employment either directly caused his heart disease or aggravated his pre-existing condition to cause the heart disease”).


text:
    A01A1417.
    SWINT v. THE STATE.
    (552 SE2d 504)
   Johnson, Presiding Judge.

Amos Swint was charged with aggravated assault, kidnapping, and making terroristic threats. A jury found him guilty of aggravated assault and acquitted him on the other two counts. In his sole enumeration of error, Swint contends the trial court erred in refusing to grant his motion for new trial on the basis that his trial counsel was ineffective. Specifically, Swint argues that his trial counsel should have called a particular witness to bolster the credibility of Swint’s version of the facts. Because we find no error, we affirm Swint’s conviction.

To prevail on a claim of ineffective assistance of counsel, Swint bears the burden of proving (1) that his trial counsel’s performance was deficient, and (2) that but for this deficiency the outcome of the trial would have been different. In addition, a strong presumption exists that trial counsel performed within the wide range of reasonable professional assistance and that challenged actions might be considered sound trial strategy. The trial court’s determination that Swint was afforded effective assistance of counsel will not be reversed on appeal unless it was clearly erroneous.

Swint’s sole contention is that his attorney’s failure to call a particular witness to corroborate Swint’s version of the facts was an instance of ineffectiveness. However, Swint did not call the witness to testify for his motion for new trial. In fact, Swint’s appellate counsel filed the motion for new trial, informed the trial court that no witnesses would be presented, and argued the case by brief. Thus, Swint has failed to present any probative evidence that the witness would have testified for him or that, if so, the witness’ testimony in his behalf would have been exculpatory. “In assessing the prejudicial effect of counsel’s failure to call a witness (whether that failure resulted from a tactical decision, negligent oversight, or otherwise), a defendant is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case.” Without the testimony of the particular witness, it is impossible for Swint to show there is a reasonable probability the results of the proceedings would have been different.

Decided July 13, 2001.

Tapley & Warnock, Charles M. Warnock, Jr., for appellant.

Ralph M. Walke, District Attorney, for appellee.

Moreover, in the absence of testimony to the contrary, counsel’s actions are presumed strategic, and counsel’s decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel. Here, in the absence of testimony to the contrary, we must presume that Swint’s trial counsel chose not to call the witness as a matter of trial strategy. The trial court did not err in denying Swint’s motion for new trial based on his ineffective assistance of counsel claim.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Turner v. State, 245 Ga. App. 294, 295 (4) (536 SE2d 814) (2000).

        Davis v. State, 238 Ga. App. 84, 89 (7) (517 SE2d 808) (1999).

        Turner, supra.

        Dewberry v. State, 271 Ga. 624, 625 (2) (523 SE2d 26) (1999).

       (Citation and punctuation omitted.) Letson v. State, 236 Ga. App. 340, 341 (2) (512 SE2d 55) (1999).

        Sewell v. State, 229 Ga. App. 685, 687 (1) (494 SE2d 512) (1997).

        Williams v. State, 242 Ga. App. 1, 2 (528 SE2d 521) (2000).