author: Ellington, Presiding Judge.

text:
    A15A0384.
    DOLAN et al. v. AUTO OWNERS INSURANCE COMPANY.
    (773 S.E.2d 789)
   Ellington, Presiding Judge.

Auto Owners Insurance Company filed this declaratory judgment action seeking a determination that certain provisions contained in its commercial general liability policy excluded coverage to its insured, Anthony Hite d/b/a Air Mechanix, L.L.C. (“Air Mechanix”), for claims arising from Air Mechanix’s alleged negligent installation of air conditioning ductwork into the home of Michael Dolan and Shana Jackson. The trial court granted summary judgment to Auto Owners. For the following reasons, we affirm in part and reverse in part.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In brief sum, the pertinent facts are as follows. Dolan and Jackson filed a complaint against Air Mechanix, among others, in the State Court of Chatham County, asserting claims of negligence per se, professional and simple negligence, and fraud. The complaint alleged that in March 2009, Air Mechanix replaced the duct system of the air conditioning unit in Dolan and Jackson’s residence. In June 2009, Dolan and Jackson discovered mold growth on the vent covers. An independent contractor ultimately concluded that the duct system, which contained holes, gaps, loose connections, and insufficient mastic, had been defectively installed in violation of the applicable city ordinances, resulting in excessive moisture and mold contamination throughout the residence. Dolan and Jackson allege that they grew ill with respiratory problems as a result and were subsequently forced to vacate the residence and abandon their personal belongings. Their complaint seeks to recover repair costs, moving costs, expenses associated with rental property, costs of living, costs related to the replacement of personal property, medical expenses, punitive damages, attorney fees, and costs of litigation.

Auto Owners, as insurer of Air Mechanix, filed the instant declaratory judgment action and sought summary judgment that Dolan and Jackson’s claims were excluded under the terms of its commercial general liability policy. The policy at issue has a general aggregate policy limit of $2,000,000 (for claims other than “products-completed operations”), and an additional “products-completed operations” aggregate limit of $2,000,000.

Under the general heading of “SECTION I — COVERAGES” and as a subset of “COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY,” the policy contains a provision entitled “Exclusions.” Auto Owners contends that Dolan and Jackson’s property claims are defeated by Exclusions (j) (6) and (j) (7), which provide:

2. Exclusions
This insurance does not apply to:
(j) Damage to Property
“Property Damage”[] to:
(6) That particular part of real property on which any insured or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; or
(7) That particular part of any property that must be restored, repaired or replaced because “your work”[] was incorrectly performed on it.
Paragraph (7) of this exclusion does not apply to “property damage” included in the “products-completed operation hazard.”

The policy defines “products-completed operation hazard” as property damage or bodily injury occurring away from property owned by Air Mechanix and “arising out of... [Air Mechanix’s] work ... when all the work to be done at the job site has been completed.”

Additionally, Auto Owners asserts that Dolan and Jackson’s personal injury claims are defeated by a separate endorsement pertaining to damage caused by “fungi or bacteria” (the “Fungi Endorsement”). The Fungi Endorsement excludes coverage for any “ ‘bodily injury’ arising out of... ‘[a] fungi or bacteria incident,’ ” and includes in its definition of “fungi” all “mold, mildew, mycotoxins, spores, scents or byproducts produced or released by any type or form of fungus.” A “fungi or bacteria incident” is defined as

an incident which would not have occurred, in whole or in part, but for the actual, alleged or threatened inhalation of, ingestion of, contact with, exposure to, existence of, or presence of, any “fungi” or bacteria on or within a building or structure, including its contents, regardless of whether any other cause, event, material or product contributed concurrently or in any sequence to such damage.

The endorsement also limits coverage for “property damage” resulting from a “fungi or bacteria incident” to $50,000.

The trial court held that Dolan and Jackson’s claims were defeated in their entirety by Exclusions (j) (6) and (j) (7), quoted above. The trial court further held that their bodily injury claims were excluded by the Fungi Endorsement, which it noted also limited recovery for property damage to $50,000. This appeal follows.

We begin our analysis by noting that

[a] s with any other contract, where the terms of an insurance contract are clear and unambiguous, and capable of only one reasonable interpretation, the court is to look to the contract alone to ascertain the parties’ intent. Even when the trial court is authorized to construe an insurance contract, because a pertinent provision is ambiguous, the trial court must construe strictly against the insurer any ambiguities in the contract and any exclusion from coverage sought to be invoked by the insurer as drafter of the document and must read the insurance contract in accordance with the reasonable expectations of the insured where possible.

(Citations and punctuation omitted.) Henderson v. Ga. Farm Bureau Mut. Ins. Co., 328 Ga. App. 396, 399 (1) (762 SE2d 106) (2014). Moreover, “[a]n insurer seeking to defeat a claim based on a policy exclusion has the burden of proving that the exclusion is applicable, and the absence of evidence does not prove the exclusion applies.” (Citation omitted.) Hathaway Dev. Co. v. American Empire Surplus Lines Ins. Co., 301 Ga. App. 65, 70 (3) (686 SE2d 855) (2009); see American Strategic Ins. Corp. v. Helm, 327 Ga. App. 482, 486 (759 SE2d 563) (2014) (“[A]n insurer seeking to invoke a policy exclusion carries the burden of proving its applicability in a given case, with the exclusion to be strictly construed against the insurer”) (citation and punctuation omitted).

1. Property Damage. Dolan and Jackson argue that the trial court erred in holding that their claims for property damage were defeated by Exclusions (j) (6) and (j) (7). Specifically, they contend that the “Exclusions” subsection in its entirety applies only to claims falling within the general aggregate policy limit, as opposed to those falling within the products-completed operations aggregate. They assert instead that the “products-completed operations hazard” has a separate and distinct set of exclusions contained within its definition. They further argue that, in any event, Exclusions (j) (6) and (j) (7) do not extend to work already completed, thus included in the “products-completed operations hazard,” as that term is defined in the policy.

We reject Dolan and Jackson’s over-generalized proposition that the “Exclusions” provision in the policy never limits claims falling within the product-completed operations aggregate. That position has no support in a plain reading of the document. See York Ins. Co. v. Williams Seafood of Albany, 273 Ga. 710, 712 (1) (544 SE2d 156) (2001) (noting that an insurance policy “should be read as a layman would read it”). The “Exclusions” subsection is located on the “COMMERCIAL GENERAL LIABILITY COVERAGE FORM” under the heading “SECTION I — COVERAGES[.] COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY,” and begins with the general proposition that “This insurance does not apply to . . . .” Nothing in the language of the policy supports that the Exclusions provision should be limited as Dolan and Jackson suggest. See Ryan v. State Farm Mut. Auto. Ins. Co., 261 Ga. 869, 872 (413 SE2d 705) (1992) (looking at the policy as a whole and considering the “ordinary and legal meaning of the words employed” in order to ascertain the intended allocation of coverage and costs).

Nevertheless, we agree with Dolan and Jackson to the extent that they argue that Exclusions (j) (6) and (j) (7) do not bar coverage for their claims. Exclusion (j) (6) excludes coverage for property damage arising out of operations that Air Mechanix or anyone on its behalf “are performing.” The policy’s use of the present tense verb, at the very least, creates an ambiguity as to whether it was intended to include completed work. And because ambiguities will be construed against Auto Owners, the drafter, and in favor of coverage, we will narrowly read the exclusion to apply only to work currently being performed. See Hathaway Dev. Co., 301 Ga. App. at 73 (3) (holding that policy provision excluding coverage for property damage on which insured was “performing operations” did not apply to completed work).

Likewise, as admitted by Auto Owners, Exclusion (j) (7) has no application to completed work. By its express terms, the exclusion “does not apply to ‘property damage’ included in the ‘products-completed operations hazard.’ ” Dolan and Jackson contend that all of the work to be done by Air Mechanix at their residence had been completed prior to the damage so as to fall within the “[pjroductscompleted operations hazard,” and the record contains no evidence to dispute that assertion. It follows that Auto Owners failed to meet its burden of proving that Exclusion (j) (7) defeated Dolan and Jackson’s claims. See Hathaway Dev. Co., 301 Ga. App. at 70 (3).

2. Bodily Injury. Dolan and Jackson further argue that the trial court erred in holding that the Fungi Endorsement defeats their claims for bodily injury. This contention, however, is based upon the same argument that we rejected in Division 1; namely, that the Fungi Endorsement does not apply to claims falling within the products-completed operations aggregate. The endorsement modifies the “commercial general liability coverage” and is an added exclusion to the policy’s coverage of bodily injury and property damage liability. Nothing in the language of the Fungi Endorsement or the policy itself justifies a conclusion that it was not intended to limit coverage falling within the products-completed operations aggregate. See Ryan, 261 Ga. at 872.

Decided July 8, 2015 —

Reconsideration denied July 30, 2015.

Southeast Law, Ashleigh R. Madison, for appellants.

R. Stephen Sims, for appellee.

In sum, we reverse the trial court’s order and judgment to the extent that it held that Dolan and Jackson’s property damage claims were defeated by Exclusions (j) (6) and (j) (7), but affirm the trial court’s ruling that recovery for their bodily injury claims for damages arising from the mold contamination is barred by the Fungi Endorsement, which also limits the recovery on their property damage claims, to the extent that those damages otherwise “aris[e] out of a ‘fungi or bacteria incident’ ” as that term is defined in the Fungi Endorsement, to $50,000.

Judgment affirmed in part and reversed in part.

Dillard and McFadden, JJ., concur.

       Dolan, and Jackson’s complaint against several other defendants was the subject of a separate appeal, Case No. A14A1066, and the trial court’s order in that case was affirmed in Dolan v. Air Mechanix, 329 Ga. App. XXV (November 18, 2014) (unpublished).

       A separate provision of the policy allows “one additional Products-Completed Operations Aggregate Limit, for each annual period, equal to the Products-Completed Operations Aggregate Limit” of $2,000,000, provided that “[t]he maximum Products-Completed Operations Aggregate Limit for any annual period will be no more than two times the original Products-Completed Operations Aggregate Limit.”

       The policy defines “property damage” as “[p]hysical injury to tangible property, including all resulting loss of use of that property” or “pljoss of use of tangible property that is not physically injured.”

       The policy defines “your work” as “[wjork or operations performed by you or on your behalf” and “[m] ateríais, parts or equipment furnished in connection with such work or operations.”

       We note that the question as to whether the specific claims being asserted by Dolan and Jackson otherwise fall within the scope of Exclusion (j) (6) is not currently before us and will not be addressed. See generally Transp. Ins. Co. v. Piedmont Constr. Group, 301 Ga. App. 17, 18-19 (1) (686 SE2d 824) (2009) (exploring the breadth of “that particular part of real property” in a nearly identically worded exclusion when damage caused by faulty workmanship extends beyond that of the contractor’s work itself).

       We do not agree with Auto Owners that a separate provision excluding coverage for “ ‘[p]roperty damage’ to ‘your work’ arising out of it or any part of it and included in the ‘products-completed operations hazard’ ” applies to these claims. “Your work” is defined in the policy as “[w]ork ... performed by you or on your behalf” and “[mjaterials, parts or equipment furnished in connection with such work or operations.” This clearly does not exclude from coverage costs associated with damage to the residence and other personal property stemming from mold contamination and excess moisture.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A15A0547.
    HOLOWIAK v. THE STATE.
    (774 S.E.2d 229)
   ANDREWS, Presiding Judge.

This is the fourth appearance of this case in this Court. See Holowiak v. State, 316 Ga. App. 328 (729 SE2d 486) (2012) (Holowiak III); Holowiak v. State, 308 Ga. App. 887 (709 SE2d 39) (2011) (Holowiak II); Holowiak v. State, 295 Ga. App. 474 (672 SE2d 454) (2009) (Holowiak I). In Holowiak II, we affirmed Nicholas James Holowiak’s conviction of driving under the influence (“DUI”) of alcohol per se, concluding, among other things, that the trial court did not err in denying Holowiak’s motion, pursuant to former OCGA § 24-10-94, seeking a material witness certificate in order to compel the attendance and testimony of an out-of-state witness in the trial court and thereby obtain the source code for the Intoxilyzer 5000, the machine used to test Holowiak’s blood alcohol content (“BAC”). 308 Ga. App. at 890-891 (2). The Supreme Court of Georgia granted Holowiak’s petition for a writ of certiorari, and in an unpublished order in Case No. S11C1190, it remanded the case to this Court for reconsideration in light of its decision in Davenport v. State, 289 Ga. 399 (711 SE2d 699) (2011). In Holowiak III, we vacated Division 2 of Holowiak II and remanded for the trial court to apply the correct standard under Davenport in reviewing Holowiak’s motion for a material witness certificate. 316 Ga. App. at 329. We instructed the trial court to determine whether the witness for whom a certificate was requested was “material,” and, if so, whether “Holowiak is entitled to a new trial or a new trial conditioned on the issuance by the appropriate out-of-state court of a subpoena to compel the appearance of the witness in Georgia.” (Punctuation omitted.) Id. On remand, the trial court initially entered an order finding that Holowiak was entitled to a new trial conditioned on the issuance of the requested subpoena, but it later set aside the order, finding that it erred in granting a conditional new trial. As discussed below, we have no basis for concluding that the trial court abused its discretion in determining that the testimony or documents sought from the out-of-state witness were not material and that Holowiak was not entitled to a new trial. Accordingly, we affirm.

The record shows that Holowiak was arrested for DUI on December 31, 2006 and charged with DUI per se and DUI less safe. Prior to trial, Holowiak filed a motion for discovery of the Intoxilyzer 5000 software source code and a motion to suppress challenging the constitutionality of the roadblock where he was stopped. Following an evidentiary hearing on October 30,2007, the trial court entered an order on or about February 11,2008 denying the motions. Prior to the evidentiary hearing, Holowiak filed a motion for a material witness certificate in order to seek to compel the attendance and testimony in the trial court of the manager of engineering of CMI, Inc., the Kentucky-based manufacturer of the Intoxilyzer 5000 machines used for state-administered BAC tests in Georgia. Holowiak did not raise the issue of the material witness certificate at the evidentiary hearing, and the trial court did not rule on the motion for the certificate in its February 11, 2008 order.

The trial court issued a certificate of immediate review of the February 11, 2008 order, and this Court granted Holowiak’s application for interlocutory appeal. In Holowiak I, we held that the trial court did not err in denying the motion to suppress or the motion for discovery. 295 Ga. App. at 475-476. While Holowiak enumerated as error the trial court’s failure to issue a material witness certificate, we held the issue was not properly before us. Id. at 475.

Subsequent to our decision in Holowiak I, Holowiak filed an amended motion for a material witness certificate to facilitate obtaining a subpoena duces tecum requiring one or more representatives of CMI, or its parent company, to produce the source code for the Intoxilyzer 5000. The trial court denied the motion. Holowiak proceeded to a jury trial in September 2009. He was acquitted of DUI less safe, and a mistrial was declared on the DUI per se count because the jury deadlocked. Holowiak was retried on the DUI per se count in January 2010, and the jury found him guilty. The trial court denied his motion for a new trial, and his appeal in Holowiak II followed.

After this Court remanded the case in Holowiak III, the trial court entered an order on November 30, 2012 granting a conditional new trial and setting a motions hearing on April 15, 2013 and a jury trial on May 6, 2013. On April 12, 2013, Holowiak filed a motion for a continuance, arguing that a forthcoming decision from the Kentucky Court of Appeals would determine whether the circuit court in Kentucky with jurisdiction over CMI had properly determined that material witness certificates like the one the trial court had issued were defective. On May 6, 2013, Holowiak filed a notice in the trial court regarding documents sent to be filed in the Circuit Court of Daviess County Kentucky. The exhibits to the notice indicate that Holowiak first forwarded the documentation to obtain a subpoena to a Kentucky attorney for filing on or about March 19, 2013. On February 14, 2014, the State filed a motion for reconsideration of the order conditionally granting a new trial, arguing that intervening appellate decisions, such as Cronkite v. State, 293 Ga. 476 (745 SE2d 591) (2013) and Young v. State, 324 Ga. App. 127 (749 SE2d 423) (2013), had clarified that granting a motion for a material witness certificate is not “automatic” and that Holowiak failed to establish materiality. The trial court set aside its order granting the conditional new trial in an order entered on July 29, 2014. The trial court stated that no subpoena had been issued by a Kentucky court and it had not “received any information that any such subpoena will ever issue from a Court in Kentucky.” The trial court concluded that “[b]y their actions, or inaction, [the Kentucky courts] have made the decision that the witness is not necessary in this case.” Alternatively, the trial court granted the State’s motion for reconsideration, determining that the cases cited by the State showed that “materiality must be considered on a case by case basis” and concluding that the materiality standard was not satisfied. Holowiak appealed after the trial court imposed its sentence.

1. Holowiak argues that the trial court erred in granting the State’s motion for reconsideration and determining that the evidence he sought by obtaining a material witness certificate was not material.

The Uniform Act to Secure the Attendance of Witnesses from Without the State (the “Uniform Act”), formerly codified in Georgia in OCGA §§ 24-10-90 through 24-10-97, provides a two-step process by which a witness living in a state other than Georgia can be compelled to attend and testify at a criminal proceeding in Georgia and to bring documents with them. See Parker v. State, 296 Ga. 586, 587 (769 SE2d 329) (2015); Davenport, 289 Ga. at 400. The first step is obtaining a material witness certificate in the Georgia trial court. See former OCGA § 24-10-94 (a). In ruling on a motion for material witness certificate, the trial court must consider whether the sought-after out-of-state witness meets the definition of “material witness” set forth in Davenport, supra. A “material witness” is “a witness who can testify about matters having some logical connection with the consequential facts, [especially] if few others, if any, know about these matters.” (Citation and punctuation omitted.) Davenport, supra, 289 Ga. at 404.

In Cronkite, 293 Ga. at 478, our Supreme Court, in applying the Davenport materiality standard in another case in which the defendant wished to obtain the Intoxilyzer 5000 source code, explained that the defendant “was required to show that the witness’ testimony regarding the source code bore a logical connection to facts supporting the existence of an error in his breath test results.” The Supreme Court concluded that the defendant failed to do so. It was undisputed that the defendant had a surgical implant in his upper teeth and a retainer on his lower teeth, and he contended that these devices could cause alcohol to remain in his mouth. Id. The defendant’s expert testified that the Intoxilyzer 5000 software was designed to generate error messages in certain circumstances, including circumstances involving the presence of alcohol in the mouth. Id. The Supreme Court found, however, that the defendant “presented no evidence that mouth alcohol was present during his breath test such that an error message should have been generated that was not generated.” Id. Nor did he “point to any other evidence of facts supporting the existence of a possible error in his specific breath test results such as discrepancies in the operation of the Intoxilyzer 5000 machine itself.” Id.; see also Young, 324 Ga. App. at 128-129 (concluding that ten DUI defendants failed to establish Intoxilyzer source code was “material” under Davenport and Cronkite; ten of them relied on general expert testimony and the other presented evidence raising mere possibility that his crying and hyperventilating during the breath test could have affected the result).

Applying Cronkite here, it was incumbent upon Holowiak to show that the out-of-state witness’ testimony regarding the Intoxilyzer source code, or the source code itself, bore a logical connection to facts supporting the existence of an error in his breath test results. In his brief before this Court, however, Holowiak does not detail or discuss any evidence he presented to satisfy this burden. Rather, Holowiak distinguishes Cronkite in a single sentence, stating: “[Cronkite] has no bearing on the instant case because [unlike the defendant in Cronkite, he] presented a large amount of evidence to support how the specific facts of his case could render a false reading.” In support of this assertion, he cites to ten volumes of transcripts from his first jury trial, thereby violating Court of Appeals Rule 25 (c) (2) (i), which requires that “[e] ach enumerated error shall be supported in the brief by specific reference to the record or transcript.” (Emphasis supplied.) “It is a sound rule of appellate practice that the burden is always on the appellant in asserting error to show it affirmatively by the record.” (Citation and punctuation omitted.) Westmoreland v. State, 287 Ga. 688, 696 (10) (699 SE2d 13) (2010). It is not an appellate court’s responsibility “to cull the record on behalf of the [appellant] to find alleged errors.” Maxwell v. State, 290 Ga. 574, 575 (2) (722 SE2d 763) (2012). Under these circumstances, we conclude that Holowiak has not satisfied his burden of showing error in the trial court’s determination, on the State’s motion for reconsideration, that Holowiak failed to establish the materiality of the testimony or evidence he sought by requesting a material witness certificate. As such, we have no basis for concluding that the trial court abused its discretion in ruling that it previously erred in granting Holowiak a conditional new trial.

2. Holowiak argues that the trial court violated a number of his constitutional rights in determining that he was not entitled to a new trial. Our decision in Holowiak III did not instruct the trial court to consider constitutional issues on remand, and it did not do so in its initial order granting a conditional new trial or in its order setting aside the same. As the trial court did not rule on the constitutional issues Holowiak now asserts, they cannot be considered on appeal. See Young, supra, 324 Ga. App. at 132 (2).

Decided July 15, 2015 —

Reconsideration denied July 30, 2015 —

The Merchant Law Firm, Ashleigh B. Merchant; Head, Thomas, Webb & Willis, William C. Head, for appellant.

Jessica K. Moss, Solicitor-General, David M. McElyea, Assistant Solicitor-General, for appellee.

3. Given our disposition in Division 1, we need not determine whether the trial court was authorized to set aside its conditional grant of a new trial based on a determination that the Kentucky court, although it had not ruled on Holowiak’s specific subpoena request, would not compel the attendance of a witness from CMI or the production of the source code. Compare Phillips v. State, 324 Ga. App. 728 (751 SE2d 526) (2013) (concluding that trial court did not abuse discretion in requiring defendant in DUI case to proceed to trial after Kentucky Circuit Court issued an order declining to compel attendance of a witness from CMI in his Georgia criminal proceeding).

Judgment affirmed.

Miller and Branch, JJ., concur.

       Although neither Holowiak nor the State cites to an order in the record denying the motion for a material witness certificate, the parties and trial court are in agreement that the trial court denied the motion.

       Georgia’s new Evidence Code took effect January 1,2013 and applies to any motion made or hearing or trial commenced on or after such date. Ga. L. 2011, p. 99, § 101. The new Evidence Code moved the provisions of the Uniform Act to OCGA §§ 24-13-90 — 24-13-97. As Holowiak’s motion for a material witness certificate was filed before the new Evidence Code was effective, we cite to the former Code provisions here.

       If the Georgia court issues the material witness certificate, it is presented to a court in the state where the witness is located, which shall issue a summons requiring the out-of-state witness to attend the criminal proceedings in Georgia if the judge determines, among other things, that the witness is material and necessary to the criminal proceedings in this State. See former OCGA § 24-10-92 (a), (b); Davenport, supra, 289 Ga. at 403.

       “[A]n out-of-state corporation may be ‘a person’ that is a material witness under the Uniform Act and may be determined to be in possession of material evidence.” Yeary v. State, 289 Ga. 394, 396 (711 SE2d 694) (2011).

       We note that we previously admonished Holowiak for failing to comply with this rule. See Holowiak II, supra, 308 Ga. App. at 887-888.


author: McMlLLIAN, Judge. BARNES, Presiding Judge,

text:
    A15A0563.
    TURRELL et al. v. McNEEL et al.
    (774 S.E.2d 274)
   McMlLLIAN, Judge.

A jury returned a defense verdict in a medical malpractice case brought by June and Robert Turrell against Michael J. McNeel, M.D., and his practice, Marietta Plastic Surgery, P.C. Following the denial of their motion for new trial, the Turrells appeal, arguing that the trial court committed errors mid-trial when the Turrells moved for sanctions, and thereafter erred in denying their motions for new trial, to strike liability defenses, and to disqualify defense counsel. Because the trial court was correct in concluding that the Turrells waived their right to seek sanctions against the defendants, we find no error and affirm.

Following a jury trial, we view the evidence in the light most favorable to the verdict. So viewed, the evidence showed that Mrs. Turrell underwent a gastric bypass procedure in 2004 and lost a great deal of weight, which left her with loose skin. In January 2007, she consulted Dr. McNeel and decided to undergo a “circumferential body lift” to remove excess skin and reshape her midsection immediately following a scheduled hysterectomy. The surgeries took place on March 2, 2007. The hysterectomy took a little more than two hours, and the body lift took another seven hours and 45 minutes, during which Dr. McNeel removed eight pounds of flesh from Mrs. Turrell’s body. Mrs. Turrell underwent a transfusion the following day and was discharged from the hospital on March 6, 2007.

An area of necrotic tissue later developed on Mrs. Turrell’s left buttock, which eventually required several additional procedures and surgeries to correct over the course of the next few months. Thereafter, she sued Dr. McNeel and his practice for medical malpractice, contending that he failed to use proper surgical techniques and failed to identify and properly treat her infected wounds. Mr. Turrell sued for loss of consortium.

The case was tried to a jury beginning on September 30, 2013. After the Turrells completed the presentation of their evidence, the trial recessed until the next morning. When the parties and counsel returned to court the next morning on the fourth day of trial, the Turrells represented to the trial court that defense counsel had contacted Mrs. Turrell’s treating wound care nurse in violation of the court’s Qualified Protective Order (“QPO”) that directed defense counsel to give notice to plaintiffs’ counsel of their intent to speak with any of Mrs. Turrell’s healthcare providers. The Turrells also complained that defense counsel had given the wound care nurse a number of documents “to review to help the defense and prepare to testify in this case,” in violation of the federal Health Insurance Portability and Accountability Act (HIPAA). Plaintiffs’ counsel offered no explanation as to why they waited until the fourth day of trial to bring these allegations to the court’s attention when it appeared that they may have discovered this issue prior to trial.

Defense counsel, who had received no prior notice of plaintiffs’ counsel’s concerns, explained that while she had previously met with the wound care nurse two years before, along with plaintiffs’ counsel, in accordance with the QPO, since that time the defense had

had no contact with her, except we called and advised her that we would be interested in calling her at trial. And she said to us that she hadn’t looked at this information in a while, and will we send her the medical records so that she could review them in preparation, and we provided her the medical records. We’ve had no contact with her other than scheduling-type information: When would you be available to come to court? When would you like for me to be here? No discussion about the substance of her testimony at all.

Plaintiffs’ counsel declared that the communications violated at least the spirit of the QPO because the defense did not inform the Turrells that they were providing documents to a treating healthcare provider to review in preparation for testifying, and they did not know what documents had been provided. The trial court agreed that contacting the wound care nurse without notifying plaintiffs’ counsel was at least a technical violation of the QPO and asked what sanctions the plaintiffs sought. Plaintiffs’ counsel requested that the defense be prevented from calling the wound care nurse as a witness.

As the defense did not intend to call the nurse until later that day or the next day, the trial court took the matter under advisement. At that point, the jury returned to the courtroom, and Dr. McNeel began his testimony. During a break in the testimony, the trial court told the plaintiffs’ attorneys:

In order to make any ruling on your motion to exclude the witness for violation of the [Qjualified [Protective [Ojrder, the Court would have to have further information and [that] would, I guess, require discovery by the plaintiffs. So, at this point, you can pursue a proffer of [the wound care nurse], of Mr. Green — e-mails, correspondence, whatever you want to obtain, in order to determine whether or not there was a violation of the Qualified Protective Order through the cooperation or intervention of another lawyer. Y’all can think about that and talk to me when I come back on.

Dr. McNeel’s direct examination resumed, defense counsel finished her direct examination, and Dr. McNeel’s cross-examination began. The court then recessed for lunch, and when counsel, the parties, and the trial court returned, plaintiffs’ counsel stated that defense counsel had informed him she would not be calling the wound care nurse to testify. Nonetheless, the plaintiffs announced their intent to seek an even more extreme sanction and moved the trial court to strike the defendants’ answer based on their allegations that (1) defendants violated the terms of the QPO, as previously discussed; (2) Mr. Green influenced the wound care nurse, who told plaintiffs’ counsel that she was reticent to testify and “felt like she was in between a rock and a hard spot”; and (3) defense counsel made material misrepresentations to the court regarding the delivery of the records to the nurse. Plaintiffs’ counsel further stated that the Turrells intended to move.for a directed verdict on liability after the evidence concluded and asked the court to withhold ruling on the sanctions motion pending the jury verdict.

Defense counsel responded that she had no notice that the plaintiffs were contemplating a motion to strike the answer, despite having conferred with them several times about whether she would call the wound care nurse or not. The court then found that defense counsel was entitled to notice and an opportunity for a full hearing on the sanctions issue. However, the court determined that scheduling a sanctions hearing mid-trial was impractical because there was a chance that the jury would find out about the sanctions hearing, which the trial court believed might “destroy our case.” Although plaintiffs’ counsel continued to argue that the court had the authority to address misfeasance in its presence rather than being required to “blow the trial up and set a hearing 30 days out,” the trial court observed that the sanctions sought were severe and that the Turrells had to either drop the matter or pursue it, and that if they wanted to pursue it, then the court could not go forward with the trial.

Plaintiffs initially rejected both options and instead moved for what was in essence a continuance until the next morning to further “refine” their motion for an “appropriate sanction.” The trial court denied a continuance but allowed counsel to again confer with their clients to reach a permanent decision, rejecting plaintiffs’ equivocal request to reserve ruling on their motion to strike defendants’ answer until after the jury reached its verdict. After so conferring, plaintiffs’ counsel agreed to “permanently withdraw” the motion and proceed with the trial.

The defense continued to present its case, and the plaintiffs offered some evidence in rebuttal. After the jury returned a defense verdict and the trial court entered judgment, the Turrells filed a motion for new trial, a motion for sanctions, and a motion to disqualify defense counsel. The trial court denied the motions, concluding that the Turrells “waived the right to pursue a remedy for defense counsel’s alleged misconduct” for violating the QPO and improperly influencing a witness. The court noted that it had offered the Turrells the “full opportunity” to address the allegations of misconduct and would have declared a mistrial, set the matter for a hearing, allowed discovery, and considered sanctions if the evidence warranted them, and had expressly put the Turrells on notice that they would waive the right to pursue any remedy for the alleged misconduct if they chose to proceed with trial. And because of its waiver finding, the trial court declined to address the Turrells’ remaining arguments related to the sanctions motion.

On appeal, the Turrells contend that the trial court erred in failing to grant them a reasonable amount of time to respond to the defendants’ misconduct, in forcing them to choose between a mistrial or waiving the motion for sanctions, in ruling on the issue after they withdrew their motion, and in denying their motions for new trial, for sanctions, and to disqualify defense counsel.

1. We will first address the Turrells’ contention that the trial court erred in failing to grant a continuance. “A motion for continuance of a trial is properly addressed to the sound legal discretion of a trial judge, who is in control of the management of the case in court. The exercise of that discretion will not be disturbed by the appellate courts unless the discretion is manifestly abused.” (Citation and footnote omitted.) Davis v. Osinuga, 330 Ga. App. 278, 279 (767 SE2d 37) (2014). Based on the facts and circumstances of this case, where plaintiffs’ counsel acknowledged they first became concerned about allegedly improper communications in the week prior to trial, we find that the trial court did not manifestly abuse its discretion in denying the plaintiffs’ request for a continuance to further consider their motion for sanctions.

2. The Turrells also argue that the trial court erred in forcing them to choose between a mistrial or waiver of their sanctions motion. Generally, “[a] trial court is granted broad authority both to control the course of a trial and to manage discovery disputes, including the imposition of discovery sanctions. We will not interfere with the trial court’s exercise of that discretion absent a showing of clear abuse.” (Citations omitted.) LN West Paces Ferry Assocs., LLC v. McDonald, 306 Ga. App. 641, 646 (2) (a) (703 SE2d 85) (2010). However, pretermitting whether the trial court abused its discretion in requiring the plaintiffs to choose to go forward with the sanctions motion and have the case mistried or permanently forego moving for sanctions, we find that plaintiffs’ counsel waived any further objection at the time the choice was made.

Rather than stating any continuing objection on the record to what the plaintiffs now call a “Hobson’s choice,” plaintiffs’ counsel, after being given some time to confer with their clients off the record, responded to the trial court’s direction by conceding:

Your Honor, based on the defendants’ representations that they are no longer going to call [the wound care nurse] to testify, we would permanently withdraw our motion for sanctions on this issue that we’ve been talking about, and we’re ready to proceed.

It is clear that plaintiffs elected to proceed to a jury verdict rather than face a mistrial and a separate hearing on the alleged misconduct. However, after the jury rendered a defense verdict, plaintiffs nonetheless attempted to renew the very motion they agreed to permanently withdraw. It is axiomatic that “[a] party cannot complain of error created by his own legal strategy, trial procedure or conduct.” (Citations omitted.) LN West Paces Ferry Assocs., LLC, 306 Ga. App. at 648-649 (3) (a). And by failing to object to the choice put to them at the time it was made, plaintiffs have waived this argument. Id. at 649 (3) (c).

3. In light of this waiver, plaintiffs’ remaining enumerations of error are moot.

Judgment affirmed.

Ray, J., concurs. Barnes, R J., concurs specially.

BARNES, Presiding Judge,

concurring specially.

While I agree with the majority that the Turrells waived their right to seek sanctions against the defendants in this medical malpractice case, I would find that they did so only because they did not renew their objection when they were presented with the option of doing so or accepting a mistrial. Because I do not agree with all that is said, I concur specially.

First, the plaintiffs in this case did not seek a continuance of the trial at any time. What they sought, reasonably, was for the trial court to defer ruling on their motion for sanctions until the following morning. This request was made after lunch on the fourth day of a five-day trial, after the plaintiffs had presented their evidence and rested. The defendants objected to the request to defer ruling because they did not want to be put to the expense of presenting a few hours of evidence if the trial court was going to rule against them, even though the plaintiff had just gone to the considerable expense of presenting several days’ worth of evidence.

Further, when the plaintiffs asked the trial court to defer ruling until the next morning, they did not know the extent of any efforts by the defendants to influence the treating wound care nurse. After further colloquy, the plaintiffs withdrew their motion for sanctions, but the defendants protested the withdrawal and wanted the matter resolved immediately. At that point the trial court gave plaintiffs’ counsel ten minutes to confer with his client and then “either proceed on the motion or you withdraw it permanently.” The trial court had made it abundantly clear early in the trial that once it ruled, she wanted to hear no further response from the attorneys, and upon his return, counsel chose the lesser of the two evils and again withdrew the motion for sanctions.

The trial court essentially required the plaintiffs to guess whether the defendants had done more than simply pass the plaintiff’s medical records through a defense attorney that the hospital had previously hired to represent the nurse, rather like making them choose to go all in or fold during a game of five-card stud when they had only seen two of their cards.

And the context of the sanctions motion as set out in the majority is incomplete. First, trial counsel had an agreement that they would disclose to opposing counsel who might be coming the next day, an agreement memorialized in the pretrial order. The defendants failed to comply with that agreement. The defense had listed their expert nurse and the treating wound care nurse as may-call witnesses. In opening, plaintiffs referred to anticipated testimony of the expert nurse, who in deposition disputed Dr. McNeel’s opinion that pictures of Mrs. Turrell’s wounds showed no signs of infection, and of the wound care nurse, who also saw signs of infection where Dr. McNeel saw none. During the plaintiffs’ cross-examination of Dr. McNeel on day three of the trial, however, defense counsel objected to a question about the opinion of his hired expert nurse on the ground that the expert was not going to testify. Plaintiffs’ counsel responded that he did not know the defense was not going to call their expert although he had asked who they would call. The court said to defense counsel, “If you weren’t going to call [your expert], you should put them on notice you weren’t going to call her,” and defense counsel replied, “Well, I just have.” The trial court pointed out that because of the “inappropriate” timing of the notice, the plaintiffs were unable to call the expert themselves, but defense counsel responded, “Well, I’m not required to put [plaintiffs’ counsel] on notice, at any time[;] if I choose not to call a witness that’s on the witness list, I don’t have to.”

At the end of the day, defense counsel notified the plaintiffs that they might call the wound care nurse the next day. Before trial began the next morning, plaintiffs’ counsel told the court that he believed that the defense had contacted the wound care nurse ex parte in violation of the QPO and had given her medical records in violation of HIPAA. After discussion, the trial court took the matter under advisement, but when plaintiffs’ counsel stated his understanding that another medical malpractice lawyer, Henry Green, had actually delivered the records to the nurse, the trial court questioned defense counsel further. Counsel explained that she involved Green in the transmission process because the hospital had previously procured him to represent the nurse.

The trial court responded that something was “a little unusual,” and noted that “Mr. Green has been known to communicate with parties and witnesses, and others related to cases, inappropriately, according to some judges. So that really puts a little stick in the wheel there.”

The Turrells did not waive their right to bring a motion for sanctions by declining the trial court’s offer of an immediate mistrial. They waived it by failing to make a contemporaneous objection when they announced their choice. A very long line of Georgia appellate cases has defined waiver as “a voluntary relinquishment of some known right, benefit, or advantage, which, except for such waiver, the party otherwise would have enjoyed.” (Citations and punctuation omitted; emphasis supplied.) Floyd v. Floyd, 291 Ga. 605, 606, n. 3 (732 SE2d 258) (2012). Further, waiver is a unilateral action, Mail & Media v. Rotenberry, 213 Ga. App. 826, 832 (2) (446 SE2d 517) (1994), not an action taken in response to an order to choose one of two possible courses of action. In this case, requiring the plaintiffs to choose between an immediate mistrial or the permanent loss of their ability to move for sanctions does not result in a “voluntary relinquishment” of their right to seek sanctions when they opt to continue the trial. As the Turrells point out, the grant of a mistrial on the fourth day of trial, after they had completed the presentation of their evidence, would have disadvantaged only them, and at that point, they did not know exactly what the defendants had done or why the wound care nurse had become reluctant to testify. Although the trial court found that the Turrells had sufficient information during trial to investigate any alleged misconduct, the court declined to give them until the following morning to look into the issue, but required them to choose after ten minutes of consultation. Agreeing to a mistrial at that point would have been a tremendous gamble in the face of incomplete information.

While the defendants argue that mistrial or waiver were the only proper options the trial court could have offered, the trial court had a third option, which was to make no ruling at all. The Turrells had withdrawn their motion for sanctions, and therefore no motion was pending that required a ruling, much less a preemptive ruling to forestall any future motion for sanctions regardless of any information the Turrells subsequently uncovered about the defendants’ actions.

There is neither reason nor precedent for the proposition that when in a legal proceeding a motion has been submitted to the court and subsequently withdrawn as formally as it was made, the question raised by the motion can be after-wards considered, unless the motion shall have been subsequently renewed.

Decided July 16, 2015 —

Reconsideration denied July 30, 2015 —

Bell Law Firm, Lloyd N. Bell, for appellants.

Huff, Powell & Bailey, Anna B. Fretwell, Erica S. Jansen, for appellees.

Howard v. State, 115 Ga. 244, 250-251 (41 SE 654) (1902).

To quote our Supreme Court in a discovery violation case, a trial “is not supposed to be a game in which the parties maneuver to hide the truth about relevant facts, and when a party does intentionally mislead its adversary, it bears the risk that the truth will later be revealed[.]” Ford Motor Co. v. Conley, 294 Ga. 530, 559 (757 SE2d 20) (2014). In this case, however, we will never know why the wound care nurse became reluctant to testify.

For these reasons, I do not agree with the majority’s analysis of this appeal and its conclusion that the Turrells waived the issue by making the choice forced upon them. But because the Turrells did not renew their objection or make a continuing objection, I agree that the issue was waived on appeal.

        Clements v. Weaver, 301 Ga. App. 430, 430 (687 SE2d 602) (2009).

       The Turrells’ original complaint was filed on February 27, 2009 and voluntarily dismissed without prejudice on February 23, 2012. The renewal complaint was filed on February 29, 2012.

       Protected health information is defined within HIPAA as “individually identifiable health information . . . that is: (i) [transmitted by electronic media; (ii) [mjaintained in electronic media; or (iii) [transmitted or maintained in any other form or medium.” 45 CFR § 160.103.

       Plaintiffs’ counsel stated to the court that co-counsel personally met with the nurse a week before trial to discuss her testimony. And co-counsel’s affidavit indicates that he spoke with the nurse on September 16, 2013 and again on September 26, 2013, four days prior to the start of trial, regarding her review of the medical records and potential testimony at trial.

       Defense counsel maintained throughout that providing Mrs. Turrell’s hospital medical records did not violate the QPO.

       Plaintiffs’ counsel then complained that another defense lawyer, Henry Green, had actually delivered the records to the nurse. When questioned by the trial court, defense counsel explained that she involved Green in the records transmission because when the nurse was originally contacted, her employer had procured Green’s representation for the nurse. The previous meeting between defense counsel and the nurse took place at Green’s office, with plaintiffs’ counsel attending. Because of this prior representation, defense counsel stated, when she decided she might call the nurse as a witness at trial, she contacted Green first and asked him if she should continue to contact the nurse through him. Green asked defense counsel to send him the materials the nurse wanted to review, and he would forward them to her.

       As proof of harm, plaintiffs alleged that Mrs. Turrell’s HIPAA rights had been violated and a witness had been “neutralized that might otherwise have testified in this case.”

       In response to the Turrells’ argument that they learned of new evidence regarding the extent and nature of defense counsel’s conduct and communication with the wound care nurse, the trial court found that the Turrells “had sufficient information during (and perhaps even prior to) trial in order to seek the investigation of, and a remedy for, defense counsel’s alleged misconduct.”

       Because I do not agree with all that is said, this opinion is physical precedent only. Court of Appeals Rule 33 (a).

       See Wellstar Health Systems v. Kemp, 324 Ga. App. 629, 637 (1) (b) (751 SE2d 445) (2013) (affirming disqualification of Green and Ms firm for pressuring a physician “directly or indirectly when they discovered that he intended to testify as an expert for [the plaintiff],” which resulted in the physician declining to testify).


author: Ray, Judge.

text:
    A15A0568.
    PIEDMONT NEWNAN HOSPITAL, INC. v. BARBOUR et al.
    (774 S.E.2d 822)
   Ray, Judge.

This case presents the interesting issue of whether it is permissible for a trial court to allow members of a jury to use their sense of touch during a trial to determine a critical issue of fact, just as they might use their senses of sight and hearing. The issue arose when plaintiff’s counsel requested and received permission for members of the jury to briefly touch both of the plaintiff’s hands to determine if there was a detectable difference in the temperature of each hand, which would be an important factor in determining whether the plaintiff had Complex Regional Pain Syndrome (“CRPS”). The plaintiff claimed that his arm was damaged while undergoing a medical procedure performed at the defendant hospital, causing him to suffer from CRPS, with one consequence being that his damaged arm was much colder than normal. The experts who testified on behalf of the parties disagreed as to whether there was a meaningful difference in temperature of the plaintiff’s hands, even though they agreed that a temperature asymmetry would be an important factor in determining whether the plaintiff suffered from CRPS.

Under the circumstances of this case, we do not believe that the trial court abused its discretion in allowing the jurors to touch the plaintiff’s hand to determine for themselves which of the two experts was correct as to this critical fact, and possibly, which expert had greater credibility as to his medical diagnosis of whether the plaintiff did or did not suffer from CRPS. Additionally, we find that the trial court properly acted within its discretion by issuing its spoliation order regarding evidence which the defendants admittedly failed to preserve for trial. However, we also find that evidence as to future lost wages which the plaintiff might suffer was at best speculative and unsupported. Accordingly, we affirm the judgment in principal part, but reverse the judgment as it pertains to the $1,195,957 awardedfor future lost wages.

On June 1, 2011, Plaintiff-Appellee Michael Barbour arrived at Appellant Piedmont Newnan Hospital (“Piedmont Newnan”) complaining of chest pains and difficulty with breathing. He underwent a series of diagnostic tests to assess his heart, principally a nuclear stress test to compare the blood flow into his heart while he was both at rest and under stress. This procedure involves injecting a small amount of nuclear material into the bloodstream to act as a tracer to the heart to facilitate the taking of a “resting” image of the patient’s heart. Thereafter, the patient exercises to increase his heart rate, then receives another injection of the same nuclear tracer, and then a second image of the “stressed” heart is taken. As to Mr. Barbour, in each instance the nuclear tracer was introduced through an IV catheter which was originally placed in his left arm when he first received treatment upon arriving at the emergency room.

The “resting” phase of the test went off without any outward indication of a problem. The nuclear material was introduced into Mr. Barbour’s vein, and Piedmont Newnan proceeded to take an image of his heart. Thereafter, Mr. Barbour proceeded to the “stress” portion of the test. First, he began walking on a treadmill to induce his heart to reach the target rate; this took approximately ten minutes. Then, the radioactive tracer was injected into the catheter in Mr. Barbour’s arm while he remained on the treadmill. Eventually, however, Mr. Barbour felt a sharp pain and cried out, leading the nurse to immediately terminate the test as she believed that the tracer material had infiltrated Mr. Barbour’s arm, meaning that the material was not contained within his vein and bloodstream, but had leaked into the soft tissue of his arm. Mr. Barbour’s arm swelled and became discolored, and a bulge appeared near where the IV port was located. No image of Mr. Barbour’s heart was taken as the attention of hospital staff shifted to treating his arm. Eventually, Mr. Barbour was discharged with specific instructions related to his arm.

The pain in Mr. Barbour’s arm did not subside. He called a nursing hotline four days after the infiltration complaining that it was worsening, including that his arm was burning, tingling and swollen. He visited his primary care physician three weeks later, having much the same complaints, including that the arm was “icy hot.” After the pain spiked further while playing softball, he sought care from two nearby emergency rooms, including at Piedmont Newnan. Eventually, neurologist Dr. Knobler diagnosed Mr. Barbour with CRPS, a diagnosis that was later confirmed by Dr. Amdrew Koman, an orthopedic surgeon and expert on CRPS. It was Dr. Roman’s opinion that the infiltration of the nuclear tracer outside the vein, combined with blood then escaping the vein, had a damaging impact on the nerve.

Mr. Barbour underwent a series of medical procedures to address the problems in his arm. Dr. Koman performed two surgeries on a nerve in Mr. Barbour’s left arm. Dr. Erik Shaw of the Shepherd’s Clinic, who specializes in CRPS, also provided treatment to Mr. Barbour. These surgeries and medical treatment were an issue at the trial, with Piedmont Newnan claiming that they were the source of Mr. Barbour’s CRPS, if indeed he really had this condition, which Piedmont Newnan did not concede.

In May 2012, Mr. Barbour and his wife filed a medical malpractice case against Piedmont Newnan and one of the nurses involved with his care during the subject stress test, alleging that they failed to ensure that the IV was correctly installed and properly functioning prior to the test, thus causing the infiltration of the nuclear tracer in his arm and the development of CRPS. The case proceeded to trial on May 5, 2014 and lasted for nine days. Piedmont Newnan denied negligence in its treatment of Mr. Barbour, denied that he had CRPS, and, to the extent that he did, denied that anything it did caused the condition, instead placing the blame on the physicians who had later treated Mr. Barbour.

The trial developed into the classic “battle of the experts,” with Mr. Barbour’s expert testifying that he did have CRPS and Piedmont Newnan’s expert claiming otherwise. First, Piedmont Newnan called Dr. Arnold Weiss to testify that Mr. Barbour did not have CRPS. Dr. Weiss stated as much, even though he admitted that Mr. Barbour was in chronic pain and that he saw nothing in the medical records to suggest that he was faking. He also acknowledged that Dr. Koman, one of Mr. Barbour’s treating physicians, was very qualified and knowledgeable about CRPS. Importantly, he admitted that, in his practice, he would not confirm or rule out a CRPS diagnosis without examining a patient, even though he was offering testimony that Mr. Barbour did not have CRPS without having ever examined him.

Plaintiff’s counsel gave Dr. Weiss that opportunity, asking Dr. Weiss to examine Mr. Barbour’s arms in the courtroom, doing so in front of the jury for all to see. As Mr. Barbour outstretched both arms and hands, Dr. Weiss stated that he did not see evidence of skin changes, that the coloring appeared pink on both arms, and that the pattern of hair growth was the same. When asked whether he felt a temperature difference from one hand to the other, Dr. Weiss seemingly hedged his opinion, first stating that they were “roughly the same,” but then acknowledging that the left “is a little cooler.”

Mr. Barbour later called Dr. Shaw to testify. Given the same opportunity to examine Mr. Barbour before the jury, Dr. Shaw pointed out both the discoloration and waxy appearance of Mr. Barbour’s injured arm, as well the differing levels of hair growth in the arms. Then, touching each of Mr. Barbour’s hands, Dr. Shaw testified that his left hand is “very cool compared to the right arm.” In response to a question as to whether the temperature difference was noticeable, he stated “generally, you’ll be able to feel it____You’ll generally be able to detect it with human touch. It has to be greater than one or two degrees difference____It’s pretty easy to detect, so it’s got to be greater than one to two degrees.”

Based upon Dr. Shaw’s testimony that there was a clear temperature asymmetry between the left and right arms and that it was relatively easy to detect, Mr. Barbour’s counsel requested permission from the court to allow the jurors to feel Mr. Barbour’s hands for themselves. Piedmont Newnan objected, stating that “this is so relevant to being incredibly prejudicial.” The trial court overruled the objection, allowing any jurors who wished to touch Mr. Barbour’s hands to do so. Several jurors did.

1. On appeal, Piedmont Newnan claims that the trial court abused its discretion in permitting jurors to touch Mr. Barbour’s hands, arguing that it impermissibly allowed them to make a medical diagnosis, that it made them witnesses who could not be cross-examined, that the exercise had no probative value, and that such a practice has been rejected by other courts around the country. While we recognize that there are some jurisdictions that would seemingly frown on the request that was granted here, such opinion is by no means universal, as other jurisdictions have allowed jurors to touch a plaintiff in appropriate circumstances. Indeed, although we find no Georgia case directly on point, our own precedent indicates that jurors may utilize all their senses, not just hearing and eyesight, in determining factual disputes put to them. Union v. State, 7 Ga. App. 27, 27 (4) (66 SE 24) (1909) (no error if jurors tasted liquid from jug admitted into evidence in illegal whiskey trial); Morse v. State, 10 Ga. App. 61, 63 (3) (72 SE 534) (1911) (jurors may utilize all of their senses, including taste and smell, in determining whether liquid was an intoxicating liquor). We also reject the argument that allowing the jurors to touch Mr. Barbour’s arms was allowing them to make a medical diagnosis, but rather find that this exercise merely was a tool to aid them, as laymen, in deciding a question of fact that was squarely put to them, that is, whether one arm was colder than the other, and that the information so gleaned was probative to the issues in the case.

(a) At the outset, we note that Piedmont Newnan seeks to expand within its enumerations of error on the actual objection that it lodged at trial. As previously noted, at trial Piedmont Newnan objected to allowing the jurors to touch Mr. Barbour’s arms because “[t]his is so relevant to being incredibly prejudicial.” This objection is certainly unclear and awkwardly composed, and possibly an error in transcription, as Piedmont Newnan’s counsel likely said or meant to say that the request was “irrelevant” rather than “relevant.”

Pursuant to OCGA § 24-4-401, relevant evidence is evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Clearly, the temperature of Mr. Barbour’s hands was a relevant factor to the experts’ diagnosis of whether he suffered from CRPS; that is undisputed. Perhaps the objection really went to the fact that Piedmont Newnan contended that it did not cause any CRPS suffered by Mr. Barbour, but that such condition, if it existed, was caused by the doctors who subsequently provided treatment to him. Yet, given its contention that Mr. Barbour did not even have CRPS, it is hardly fair for Piedmont Newnan to argue that it was irrelevant whether at trial one arm was colder than the other.

After touching Mr. Barbour’s hands, it might indeed have been prejudicial to Piedmont Newnan if the jury believed that its expert was not truthful in his testimony about a temperature difference. Yet, the facts are the facts, and to exclude evidence merely because the information would be prejudicial to one side or the other is “an extraordinary remedy which the courts should invoke sparingly, and the balance should be struck in favor of admissibility.” (Punctuation and footnote omitted.) Williams v. State, 328 Ga. App. 876, 879 (1) (763 SE2d 261) (2014).

(b) Citing to Schaffner v. Chicago & North Western Transp.. Co., 129 Ill. 2d 1, 30 (III) (541 NE2d 643) (1989), Piedmont Newnan argues that allowing jurors to touch Mr. Barbour was prejudicial because it could have the effect of converting the jurors into witnesses for the party conducting the test and that opposing counsel was unable to cross-examine the jurors on their experience. Of course, this presupposes that the jurors who touched Mr. Barbour’s arms would find a difference in temperature and disbelieve Piedmont Newnan’s experts. If the temperature differential was nonexistent or negligible, as Dr. Weiss so testified, then this might have been the best evidence in support of Piedmont Newnan’s defense. In any event, longstanding precedent from this Court flatly rejects the argument that jurors who use their senses to make determinations of facts are turned into witnesses, immune from cross-examination. In Union, supra, where the defendant was tried for a violation of Prohibition laws related to the possession of alcohol, the trial court permitted the jury to take with them to the jury room the jug containing the liquid alleged to be illegal whiskey. The defendant complained on appeal that some of the jurors might have tasted the substance, and if so, that he was denied an opportunity to cross-examine them on their findings and that they may have communicated their conclusions to others on the jury. Our learned colleagues of 100 years prior were unpersuaded, stating:

[W] e do not see that [tasting the liquid] would have been different from [a juror’s] looking at the wine glass and determining from the peculiarity of its fracture . . . that it was a glass. Each is alike a case of identification by one of the five senses. In the identification of the glass it would be by that of sight; the identification of the contents of the jug would be by that of taste, or it might be that of smell____The view which a certain juror might take of such physical testimony in discussing it with his fellow can not affect its admissibility, and is not to be considered as testimony delivered beyond the hearing of the defendant on trial. If that were true, the defendant would be entitled to rebut the impression which the juror received from his sense of sight, or to prevent him from communicating it to his fellow jurors, unless he was first sworn as a witness.

Id. at 31-32 (4).

In the appeal before us, Piedmont Newnan brings no complaint that jurors were allowed to look at Mr. Barbour’s arms to see if the left arm was discolored, which as we know is a potential symptom of CRPS. There is no argument that the jurors should not have been permitted to use their sense of sight to look for nervousness, fidgeting, sweating, or other nonverbal indications that a witness might be lying. Why, then, cannot the sense of touch be utilized by the jury in appropriate circumstances, limited by the exercise of the sound discretion of the trial court, just like the senses of sight, hearing, and even taste have been so allowed? “It is certainly in the interest of truth — the supreme object of all legal investigation — to let the jurors, who are the final arbiters of the question, apply to its solution the most accurate sense they are capable of applying.” Morse, supra at 64.

Piedmont Newnan acknowledges that courts in other jurisdictions have permitted jurors to touch an injured body part, but argues that such cases were merely for the jury to determine the extent of an injury, and that in this case the jury was being asked to make a medical diagnosis. See Grubaugh v. Simon J. Murphy Co., 209 Mich. 551, 561-562 (3) (177 NW 217) (1920) (in an action for injuries, it was not error to permit plaintiff to enter the jury box and allow jurors to feel a lump on his arm). First, the purposes for which other courts have allowed jurors to touch a plaintiff are not as strictly limited as Piedmont Newnan asserts. For example, in McAndrews v. Leonard, 99 Vt. 512, 517 (134 A. 710) (1926), the trial court allowed the jury to touch the head of a plaintiff to feel whether his skull was fully healed with new bone as the defendant so argued, or only partially healed with fibrous tissue instead of bone as the plaintiff contended. The parties’ experts, not surprisingly, had disagreed. The trial court allowed the jury to touch the skull to aid them in determining who was correct. See also Sampson v. St. Louis & San Francisco R. Co., 156 Mo. App. 419, 424 (138 SW 98) (1911) (affirming trial court’s ruling allowing jury to touch plaintiff’s arm, when the dispute concerned circulatory issues and the temperature of the arm); Curry v. American Enka, 452 FSupp. 178, 181-182 (E.D. Tenn. 1977) (permission may be granted for jurors who wish to feel a part of the plaintiff’s body for purposes of resolving some disputed or controverted fact). Compare Ateser v. Becker, 272 AD2d 219, 219 (708 NYS2d 76) (2000) (trial court properly refused to allow jurors to touch plaintiff’s legs to feel temperature differential). Thus, the persuasive authority from other jurisdictions support either side of the controversy before us.

(c) Finally, Piedmont Newnan contends that the trial court erred by essentially allowing jurors to make a medical diagnosis. Again, we disagree. The touching of Mr. Barbour’s arm allowed the jurors to determine two things: (1) whether the left arm was indeed cooler than the right arm and (2) which expert, Dr. Shaw who testified on behalf of Mr. Barbour, or Dr. Weiss who testified on behalf of Piedmont Newnan, was more credible on this point and perhaps more credible overall. Any juror who touched Mr. Barbour’s arms was permitted to take any information gleaned therefrom into consideration, along with the balance of the experts’ testimony and other evidence presented, in determining this issue in the case. Both experts had impressive credentials; yet, their conclusions were so disparate. Certainly, credibility could play an important role in the jury’s evaluation and assessment of the value of their opinions. At the end of the day, whether or not the trial court had allowed the jurors to touch Mr. Barbour’s arms, the jury had to make the final decision as to whether Mr. Barbour suffered from CRPS and, if so, whether Piedmont Newnan was responsible.

2. Piedmont Newnan argues that the trial court abused its discretion in applying spoliation sanctions against it due to Piedmont Newnan’s admitted failure to preserve the digital images of the “resting” test of Mr. Barbour’s heart despite the written request from Mr. Barbour’s attorney for his records. Piedmont Newnan argues that these sanctions were inappropriate because (1) there was no spoliation because these images were not “necessary” for Mr. Barbour’s case and (2) the sanctions were prejudicially overbroad. We are unpersuaded and believe that the trial court acted within the broad discretion available to it under the facts. See Phillips v. Harmon, 297 Ga. 386, 393 (II) (774 SE2d 596) (2015); Wal-Mart Stores v. Lee, 290 Ga. App. 541, 545-546 (1) (659 SE2d 905) (2008). Additionally, it is clear from the record that Piedmont Newnan, while not agreeing that the trial court’s finding of spoliation was correct and consequently that any spoliation sanctions should be imposed, did agree that the sanctions fashioned by the court as a response to the trial court’s finding of spoliation were appropriate, proportional and bore a rational relationship to missing records of Mr. Barbour’s heart.

On September 23, 2011, legal counsel for Mr. Barbour wrote to Piedmont Newnan asking for a complete copy of his medical records, including “[c]opies of any Radiology Diagnostic CDs or Films[.]” Unquestionably, this request would have included the images of his heart that were captured by the diagnostic machinery during the “resting” phase of the test. Further, within six months of the test, Mr. Barbour alerted Piedmont Newnan that he would pursue legal action against it. Yet, despite receipt of this request and knowledge that a lawsuit would be forthcoming, Piedmont Newnan did not preserve and produce these images. These images, which had remained stored on the imaging device and were never downloaded, were lost when the hospital moved to a new location and the vendor of the portable medical imaging device erased the hard drive before moving the machine.

The importance of these images was hotly debated. Mr. Barbour claimed that without the images, he was hampered in his effort to discover and establish that the catheter was not working properly during the “resting” phase of the test. His theory at trial was that the negligence on the part of Piedmont Newnan may have occurred either during this first phase, or the “resting” test, and if not, that it occurred during the second phase, or the active “stress” test. Without the images to show whether the nuclear tracer made it to his heart during the “resting” test, the only objective evidence was lost and his burden to prove when and under what circumstances the leakage occurred was made much harder.

In opposing the spoliation motion, in addition to contending that there was no pending or contemplated litigation when the images were erased, Piedmont Newnan argued, as it does here, that the “resting” heart images were not necessary because it essentially was clear that the infiltration occurred during the “stress” phase of the test. The nurses and technicians who performed the tests would have testified as such, and Mr. Barbour did not experience any of the symptoms of the infiltration until the “stress” portion of the test was underway. Thus, as the argument goes, there was no reason to preserve the images captured during the “resting” phase.

One might say that Piedmont Newnan’s argument essentially “begs the question.” It is true that the testimony of its employees would have supported its contention that there was no problem during the “resting” phase of the test and, indeed, the fact that no infiltration to Mr. Barbour was detected during that time also lends credibility to this claim. However, the images themselves would have been important proof one way or the other because it would have shown whether the tracer was making its way to Mr. Barbour’s heart. Assuming arguendo that the IV was not working correctly during the “resting” test, despite the testimony of Piedmont Newnan’s employees, the images were the only objective way that Mr. Barbour likely could have proven otherwise. We cannot quarrel with the trial court’s conclusion that these images should have been preserved.

As we have previously stated:

Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. And, when key evidence has been destroyed, exclusion of evidence or dismissal of a case may be warranted. In determining whether such a severe sanction is warranted the trial court must consider: (1) whether the defendant was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the plaintiff acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.

(Punctuation and footnotes omitted.) Bridgestone/Firestone North American Tire v. Campbell, 258 Ga. App. 767, 768-769 (574 SE2d 923) (2002).

It appears that the trial court thoughtfully applied these factors as embedded in its order of June 19, 2013, finding that Piedmont Newnan was responsible for spoliation by not acting to preserve the digital images of Mr. Barbour’s heart and applying its narrowly tailored sanctions. In reaching this conclusion, we are mindful that our standard of review is whether the trial court abused its wide discretion. See Phillips, supra at 397 (II). This we cannot find.

3. The nearly $4.5 million verdict in favor of Mr. Barbour included $ 1,195,957 for future lost wages. Piedmont Newnan appeals the award for future lost wages, complaining that there was not sufficient evidence to support this claim and that it was based merely on speculation. We agree.

Mr. Barbour’s claim for future lost wages was based merely upon his fear that he would lose the job in which he was employed at the time of the trial. Yet, in November 2013, his treating physician released him to work fulltime without any restrictions at his desk job at Dick’s Sporting Goods. His supervisor testified at trial that he had met all of his performance targets for his current position and even described him as “amazing.” While he had missed some work for medical treatments, he was paid 100 percent of his pay during his sick leave as per company policy; his supervisor testified that Dick’s Sporting Goods does not “hold [attendance] against” employees when absent for medical reasons and that Mr. Barbour is able to meet the targets and goals of his position when he is at work.

The law in Georgia is that future lost wages may be recovered only when such losses are “reasonably certain” and not speculative. See Ike v. Kroger Co., 248 Ga. App. 531, 534 (6) (546 SE2d 903) (2001) (trial court correctly refused to instruct the jury on future lost wages where the plaintiff, who was working, had not shown “either that she had a permanent injury or that she would be entitled to lost wages for any particular period”). There must be evidence from which the jury can estimate or reasonably infer the loss or decrease in earning capacity, and a claim for future lost wages cannot be based upon pure conjecture or speculation. See Jones v. O’Day, 303 Ga. App. 159, 161-162 (692 SE2d 774) (2010). While there was ample evidence at trial that Mr. Barbour’s injury was permanent, the same cannot be said that he would suffer lost wages in the future, particularly considering the glowing reviews of his job performance, his good standing with his supervisor, his employer’s policy of accommodating workers with health issues, and the fact that he receives full pay when he must miss work for medical treatment.

Decided July 16, 2015 —

Reconsideration denied July 30, 2015

King & Spalding, Chilton D. Varner, Merritt E. McAlister; Weathington Smith, Paul. E. Weathington, Charles M. Smith, Paul I. Hotchkiss, for appellant.

The Summerville Firm, Darren Summerville, Angela R. Fox;Bell Law Firm, Lloyd N. Bell; The Schlachter Law Firm, Lawrence B. Schlachter, for appellees.

The trial court should have granted Piedmont Newnan’s motion for directed verdict as to future lost wages. Accordingly, we hereby reverse that award.

Judgment affirmed in part and reversed in part.

Phipps, P. J., concurs. Andrews, P. J., concurs fully in Division 3 and in judgment only in Divisions 1 and 2.

       Symptoms of CRPS include skin discoloration, impacted nail or hair growth, pain disproportionate to the injury, oversensitivity to touch, and temperature differences in the affected limb.

       The jury reached a verdict in favor of the nurse, but against Piedmont for $4,470,903, which included $183,244 for past medical expenses; $790,000 for future medical expenses; $51,702 for past lost wages; $1,195,957 for future lost wages; $1,000,000 for past pain and suffering; $500,000 for future pain and suffering; and $750,000 for Mrs. Barbour’s loss of consortium claim.

       Piedmont called Dr. Weiss as its witness during Mr. Barbour’s case and, thus, out of order to accomodate his schedule.

       “[I]n order to raise on appeal contentions concerning admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and failure to do so will be considered as a waiver.” (Citation, punctuation and footnote omitted.) Clemons v. State, 257 Ga. App. 96, 103 (3) (574 SE2d 535) (2002).

       We note that, interestingly, Piedmont Newnan lodged no objection on the record to either of the experts touching Mr. Barbour’s hands in the courtroom and testifying as to their findings, thereby supporting our conclusion that information as to the current temperature of Mr. Barbour’s hands was, indeed, relevant.

       We must note that we are not deciding whether it is permissible for some, but not all, of the jurors to touch the Plaintiff’s arms. While Piedmont Newnan posed a rhetorical question in its brief that seemed to implicitly challenge the propriety of less than all jurors participating in the exercise, it cannot be fairly said that it alleged such as an error. It certainly was not raised as an objection at trial or specifically included as an enumeration of error on appeal. Accordingly, this issue was waived.

       The jury’s use of sight is such an important tool that normally a witness cannot express an opinion as to whether a perpetrator depicted on a video of a crime is the defendant on trial; that determination is generally within the sole province of the jury. See Carter v. State, 326 Ga. App. 144, 147-149 (3) (756 SE2d 232) (2014).

       See Mitchell v. State, 283 Ga. 341, 342 (1) (659 SE2d 356) (2008) (jury was authorized to use its senses to determine length of the knife blade used in commission of crime); White v. State, 203 Ga. App. 889, 891 (4) (418 SE2d 149) (1992) (jury could use their sense of sight and touch to determine that subject knife was at least three inches in length and, thus, illegal, despite the lack of testimony on this point by any witness); Jones v. State, 150 Ga. App. 300, 301 (3) (257 SE2d 370) (1979) (“identification of evidence by any of the five senses is not forbidden”).

       The jury is not some static entity that is required to accumulate and plot the evidence presented like a scientist or mathematician, allowing the final result to be determined through regression analysis. Rather, the process of deciding facts and making decisions by a jury is a dynamic process, as so aptly demonstrated by actor Henry Fonda in the movie 12 Angry Men.

       Piedmont Newnan and/or their witnesses were prohibited from testifying or arguing that the catheter was properly ported in the “resting” phase.