author: Miller, Judge.

text:
    A13A1558.
    McBURROWS v. THE STATE.
    (750 SE2d 436)
   Miller, Judge.

Following a jury trial, Keith McBurrows was convicted of two counts of armed robbery (OCGA § 16-8-41 (a)) and two counts of possession of a firearm during the commission of a felony (OCGA § 16-11-106 (b) (l)). McBurrows appeals from the denial of his motion for new trial, contending that the trial court erred in: (1) denying his motion to suppress; (2) admitting bad character evidence; (3) allowing hearsay testimony; (4) allowing certain exhibits to go out with the jury in violation of the continuing witness rule; and (5) failing to conduct an in camera inspection of the State’s file and denying his request to copy and seal the file. McBurrows also contends that the trial court erred in charging the jury, and the State improperly referred to evidence in violation of the trial court’s ruling on a motion in limine. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on the night of March 21, 2003, the first victim went to a check-cashing store located on the corner of Campbellton Road and DeLowe Drive in Atlanta. After she cashed her check, the first victim caught a bus to return to her apartment, which was located about five blocks away from the check-cashing store. Upon exiting the bus, the first victim walked across the street and onto the driveway that led into her apartment complex. The first victim heard a car and then someone running up from behind her. When the first victim turned around, McBurrows was standing about five feet away and pointing a silver gun at her. McBurrows demanded the victim’s purse, which contained approximately $193 in cash. After the first victim gave her purse to McBurrows, he returned to the car and left the apartment complex and headed in the direction of the check-cashing store. The first victim then ran into her apartment and called the police. The first victim described the vehicle as a 1994 two-door, dark-blue Ford Thunderbird that had a drive-out tag.

A few days later, on March 25, 2003, the second victim left work at 11:00 p.m. and drove to the same check-cashing store located on Campbellton Road. After the second victim received some money orders and cash, she exited the store and returned to her car. She got into her car and put her purse, money orders, and some envelopes on the seat and began to close the car door. McBurrows then snatched open the door, pointed a silver gun at the second victim’s head, and reached over the victim to turn off the car’s interior light. The second victim testified that at one point, she was almost face-to-face with McBurrows and saw his face completely. McBurrows warned the second victim to keep quiet, grabbed her purse and money orders, and took off running. The victim got out of her car and started yelling for help. The victim learned that her assailant left in a dark Ford Thunderbird and headed toward an apartment complex. The second victim subsequently called the police.

A responding officer met the second victim at the apartment complex. The officer spoke to the owner of the Ford Thunderbird. The owner, who had lent his vehicle to McBurrows and his brother, had just seen McBurrows return to the apartment complex with a woman’s purse that contained money orders. When questioned by the police, however, the owner lied to police and said that nobody had recently been driving his vehicle. Since the second victim did not identify the owner of the vehicle as being involved in the robbery, the officer did not believe that the vehicle was involved in the robbery.

About a week later, on April 2, 2003, officers received information that two men were sitting in a parked car across the street from the check-cashing store on Campbellton Road, and the description of the vehicle matched the description of the car given by the victims. Officers responded to the scene and subsequently arrested McBurrows. A search of the vehicle revealed a drive-out tag and a black and silver gun. A photo lineup was subsequently shown to both victims, who both positively identified McBurrows as their assailant.

1. McBurrows challenges the denial of his motion to suppress in several respects. In reviewing a trial court’s ruling on a motion to suppress, we may consider all relevant and admissible evidence of record introduced at the motion hearing or during trial. See Walker v. State, 314 Ga. App. 67 (1) (722 SE2d 887) (2012). Additionally,

[wjhile a trial court’s findings as to disputed facts will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citation and punctuation omitted.) Id.

(a) McBurrows first contends that the officers lacked a reasonable suspicion to conduct the stop. We disagree.

A law enforcement officer may make a brief, investigatory stop of a vehicle when he has a reasonable, articulable suspicion that the person stopped has been, or is about to be, engaged in criminal activity. This specific, articulable suspicion must be based on the totality of the circumstances — e.g., objective observations, information from police reports, the modes or patterns of certain kinds of lawbreakers, and the inferences drawn and deductions made by a trained law enforcement officer; inferences and deductions that might well elude an untrained person. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. The existence of an articulable suspicion can be based on the collective knowledge of law enforcement officials.

(Punctuation and footnotes omitted.) Prado v. State, 306 Ga. App. 240, 245 (1) (701 SE2d 871) (2010).

As to the initial stop, the detective investigating the armed robberies testified at the- motion to suppress hearing that he compared the similarities between the two armed robberies. The detective went to the check-cashing store on Campbellton Road and DeLowe Drive and to other nearby businesses to ask for their help in apprehending the individual involved in the rash of robberies in the area. The detective informed local businesses that he was looking for a black male between 5'8" and 6'1" and between 210 and 250 pounds, and he was also looking for a dark blue or black two-door Ford Thunderbird. The detective asked business owners to call him or 911 if they saw a vehicle matching that description in the area between the hours of 10:30 p.m. and 2:00 a.m. At about 10:30 one night, the detective received a call from a local security guard that the guard saw a dark-colored Ford Thunderbird parked across the street from the check-cashing store and that two people were sitting inside the vehicle. The detective broadcast a be-on-the-lookout (“BOLO”), and dispatch then sent some units to Campbellton Road and DeLowe Drive. Police officers subsequently stopped the two-door black Thunderbird across the street from the check-cashing store, and McBurrows was detained.

The BOLO broadcast by the detective provided a reasonable basis to stop the vehicle in which McBurrows was a passenger. The BOLO provided particularized information describing the color, manufacturer and model of the vehicle, the number of occupants, and the location of the vehicle. “Particularized alerts issued by police officers for specifically described vehicles possibly involved in criminal activity have long served as a legitimate basis for investigatory stops.” (Citations omitted.) Faulkner v. State, 277 Ga. App. 702, 704 (1) (627 SE2d 423) (2006). Additionally, the identified vehicle was practically identical to the one involved in the armed robberies, the vehicle was in the area where the armed robberies had occurred, and the hour the vehicle was spotted was at about the same time that the other robberies had occurred.

To the extent McBurrows contends that reasonable suspicion could not be based solely on the detective’s testimony, and that the officers who conducted the stop were required to testify, his argument is without merit.

Reasonable suspicion need not be based on [a responding] officer’s knowledge alone, but may exist based on the “collective knowledge” of the police when there is reliable communication between an officer supplying the information and an officer acting on that information. In this regard, police are authorized to stop an individual based on a “be on the lookout” dispatch or even a radio transmission from another officer who observed facts raising a reasonable suspicion of criminal activity or a traffic violation.

(Citations omitted.) Camp v. State, 259 Ga. App. 228, 229 (1) (576 SE2d 610) (2003). Based on the totality of the circumstances, the officers had a reasonable suspicion to believe that the vehicle and its occupants were about to be engaged in criminal activity, and therefore, the stop was valid.

(b) McBurrows also contends that his motion to suppress should have been granted because the stop was unreasonably prolonged. We do not agree.

The United States Supreme Court has adopted a dual inquiry for evaluating the reasonableness of a lengthy investigative stop. First, we consider whether the officer’s action was justified at its inception, and second, whether it was reasonably related in scope to the circumstances which justified the interference in the first place. In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.

(Citations and punctuation omitted.) Randolph, supra, 246 Ga. App. at 146 (3) (b).

Here, upon arriving at the location of the stop, the detective observed that McBurrows matched the description of the armed robber at the center of his investigation. The detective informed McBurrows that he was investigating the robberies, and he asked McBurrows for his name and identification. McBurrows stated that he did not have any identification and provided the name of “Keith Smith.” The detective was unable to verify McBurrows’s identity with the name and date of birth provided. McBurrows also provided a residential address. Officers and the detective went to that location, and people there said that no one by the name of Keith Smith lived at the residence. When the detective returned, he placed McBurrows under arrest for providing a false name and false address.

The detective testified that he spent about 15 to 20 minutes attempting to verify McBurrows’s name and address, and that a total of about 30 minutes had elapsed from the time he gave the BOLO report until the time he placed McBurrows under arrest. There is no evidence that the officers were failing to diligently pursue the investigation to confirm or dispel their suspicions quickly. Moreover, given that McBurrows matched the physical description of the suspect involved in the armed robberies, and the officers spent at least 15 minutes attempting to verify the information given by McBurrows, we cannot say that the stop was unreasonably prolonged. See King v. State, 258 Ga. App. 872, 875 (1) (575 SE2d 679) (2002) (detaining and questioning of defendant for approximately 30 minutes was not unreasonable given that officers were investigating a robbery).

(c) McBurrows also argues that the trial court should have suppressed the evidence found during an inventory search of the Ford Thunderbird because the impoundment and subsequent search of the vehicle were not reasonably necessary. Specifically, he asserts that since the owner of the vehicle was present when the stop occurred, the owner could have removed the vehicle. McBurrows did not, however, raise this contention in the proceedings below. In his motions to suppress, McBurrows challenged only the photo lineups and the basis for the stop and arrest. Additionally, McBurrows did not specifically argue in the trial court that the search of the vehicle pursuant to an impoundment was unlawful.

[E]vidence exclusion is an extreme sanction and one not favored in the law. For this reason, OCGA § 17-5-30 (b) requires a motion to suppress to be in writing and to state facts showing that the search and seizure were unlawful. On a motion to suppress, the State is entitled to proper notice of the issue raised or it will be deemed waived. In other words, the suppression motion must be sufficient to put the State on notice as to the type of search or seizure involved, which witness [es] to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.

(Citations and punctuation omitted; emphasis in original.) State v. Gomez, 266 Ga. App. 423, 425 (2) (597 SE2d 509) (2004); see also Young v. State, 282 Ga. 735, 736-738 (653 SE2d 725) (2007). The State was plainly not given the requisite notice that one of the issues to be resolved at the suppression hearing was whether the impoundment and subsequent inventory search of the vehicle was necessary. Accordingly, McBurrows’s claim is waived.

2. McBurrows contends that the trial court erred in permitting bad character evidence without providing a curative instruction or granting a mistrial. We discern no error.

(a) McBurrows first cites to the detective’s testimony about arranging a photo array to show to one of the victims. As a preliminary matter, McBurrows did not make a contemporaneous objection to the challenged testimony and has, therefore, waived this argument. See Allen v. State, 224 Ga. App. 324, 326 (5) (480 SE2d 328) (1997). Even if not waived, his claim is without merit.

The detective testified that he presented the first victim with two different photo lineups, one that was shown on March 28, 2003 and a second that was shown on April 8, 2003. The detective further testified that

on the first array of photos that I showed [the first victim] this was a subject that was arrested at the Church’s Chicken right next door to the check cashing store. He was arrested for attempting to rob the business. So because of the proximity of the Church’s Chicken and the check cashing store I put him in an array of photographs to see if he may have been the person that robbed [the victim].

The detective testified that when he presented the first array of photos to the first victim on March 28, 2003, the first victim did not identify anyone in the array of photographs. The detective subsequently compiled a second photo array for the first victim, and she immediately identified McBurrows from this second lineup. Based on this evidence, it is clear that the detective’s testimony about an individual being arrested for robbing the Church’s Chicken did not refer to McBurrows.

(b) McBurrows next argues that the trial court erred in allowing, over his objection, testimony that he was not working. If a passing reference to a defendant’s incarcerated status does not place his character at issue, see, e.g., Jones v. State, 270 Ga. App. 368, 370 (2) (b) (606 SE2d 592) (2004), it stands to reason that a passing reference to a defendant’s unemployment also does not touch upon his character. Nevertheless, the challenged testimony was relevant to the issue of motive in the case.

Although motive is not an essential element in proving the crimes charged, the State is entitled to present evidence to establish that there was a motive, and evidence [of McBurrows’s unemployment] is relevant to prove that he had a motive for committing the crimes and is not rendered inadmissible by the fact that it [might] incidentally put[ ] his character in issue.

(Citations omitted.) Thornton v. State, 292 Ga. 87, 88-89 (3) (734 SE2d 393) (2012) (concluding that evidence of defendant’s drug buy was admissible as to issue of motive for robbery); see also Stephens v. State, 214 Ga. App. 183, 186 (5) (447 SE2d 26) (1994) (holding that defendant’s statement regarding his dire financial condition was relevant to establish motive for arson).

3. McBurrows contends that the trial court erred in allowing hearsay evidence. We disagree.

(a) McBurrows argues that the trial court erred in allowing the second victim to testify about the comments of a bystander who observed the assailant leave in a black Thunderbird and offered to take the victim to where the assailants lived. The trial court overruled McBurrows’s hearsay objection on the issue, concluding that the bystander’s comments were part of the res gestae and explained how the second victim got to the apartment complex on Honeysuckle Lane.

Even if the trial court erred in admitting this evidence, the testimony was cumulative of other admissible evidence; therefore, it did not amount to reversible error. See Belmar v. State, 279 Ga. 795, 797 (2) (621 SE2d 441) (2005). In this case, the second victim positively identified McBurrows as the person who robbed her on March 25, 2003. The owner of the Ford Thunderbird testified that McBurrows and another individual had borrowed his Ford Thunderbird on the night of March 25, 2003, and that McBurrows returned to the apartment located on Honeysuckle Lane with a woman’s purse and money orders. Since the hearsay testimony was cumulative of other legally admissible evidence of the same fact, that testimony was harmless.

(b) McBurrows also asserts that the photo lineup admonition sheet contained hearsay because it included the signature of an individual who did not testify at his trial. Pretermitting whether the trial court erred, McBurrows has failed to show harm. The admonition sheet in question was the same admonition sheet given to the second victim, and the sheet was given to this other individual on the same date that the second victim positively identified McBurrows from the photo lineup. The admonition sheet does not, however, contain any information showing that this individual positively identified McBurrows as being involved in the armed robbery. Accordingly, McBurrows cannot show harm. See Watson v. State, 264 Ga. App. 41, 43 (2) (589 SE2d 867) (2003) (“Harm as well as error must be affirmatively shown by the record to obtain reversal.”) (citation omitted).

4. McBurrows also contends that the trial court erred in allowing certain exhibits to go out with the jury during deliberations in violation of the continuing witness rule. We disagree.

In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.

(Citation omitted.) Decapite v. State, 312 Ga. App. 832, 835 (3) (720 SE2d 297) (2011). The types of documents that have been held subject to the continuing witness rule include affidavits, depositions, written confessions, statements, dying declarations, or other instruments of evidence whose sole value depends upon the credibility of the maker. See Sherrell v. State, 317 Ga. App. 571, 576 (2) (731 SE2d 790) (2012); Brewton v. State, 174 Ga. App. 109, 110-111 (2) (329 SE2d 270) (1985).

(a) McBurrows asserts that the continuing witness rule was violated when the evidence tag attached to the gun recovered from the Ford Thunderbird was allowed to go out with the jury.

The record reveals that McBurrows made no continuing witness objection either at the time the gun was introduced into evidence or when it was included in the exhibits sent to the jury room. Rather, McBurrows only raised a continuing witness objection to the admonition sheets. Consequently, he has not preserved this issue for appeal. See Zellars v. State, 278 Ga. 481, 482-483 (2) (604 SE2d 147) (2004); Flournoy v. State, 266 Ga. 618, 618-619 (2) (469 SE2d 195) (1996).

(b) As to McBurrows’s complaint regarding the photo lineup admonition sheets, the sheets included the following, limited information: the witness’s name and signature, the number of the photograph the witness selected from the lineup, the date of the selection, and the signature of the officer who conducted the lineup. This Court has previously viewed admonition sheets as tools to help explain the photo lineup display shown to a witness, as opposed to a witness’s statement. See Parks v. State, 199 Ga. App. 736, 738-739 (2) (406 SE2d 229) (1991); Brewton, supra, 174 Ga. App. at 111 (2).

We note that the admonition sheet signed by the second victim also contains the additional comment “ID in 5 seconds,” and the sheet signed by the first victim contains the statement “Instant ID.” Regardless of whether the additional statement constituted “written testimony,” however, any error in allowing the exhibits to go out with the jury was harmless. Both victims, who were subject to extensive cross-examination, testified at trial that they positively identified McBurrows as their assailant during the photo lineup, and identified him in court. Additionally, during deliberations, the jury had the photo spreads shown to both victims and, therefore, could compare the fairness of the photo lineups and determine whether the defendant was the individual identified in those lineups. In light of these circumstances, as well as the overwhelming evidence against McBurrows, we conclude that it is highly probable that any error in permitting the admonition sheets to go out with the jury did not contribute to the jury’s verdict. See Parks, supra, 199 Ga. App. at 738-739 (2) (holding harmless the submission to the jury of photo identification sheet containing comment that “[i]t has to be # 2 because the mustache and lips matched the robber”); cf. Kent v. State, 245 Ga. App. 531, 533 (3) (538 SE2d 185) (2000) (allowing victim’s statement to go out with jury violated the continuing witness rule, but the error was harmless since the evidence contained therein was brought out during trial and evidence of guilt was overwhelming).

5. McBurrows next contends that the trial court erred in failing to conduct an in camera inspection of the State’s file and in denying his request to copy and seal the prosecutor’s file for possible appellate review. We do not agree.

Here, during cross-examination of the detective, McBurrows moved for a mistrial on the basis that the State failed to provide him with the detective’s notes regarding his March 28, 2003 interview of the first victim. The detective testified that the subject notes contained the first victim’s description of her assailant. The detective further testified that he had provided his notes to the prosecutor, who then put them in a trial binder. The State argued that it handed the material in question to former defense counsel, and at the State’s suggestion, the trial court stated that it would conduct an in camera inspection of the State’s trial binder for the purposes of determining whether it contained any exculpatory evidence. Following the in camera inspection, the trial court stated that it did not find any exculpatory evidence in the State’s file, nor did it find the subject notes the detective gave to the prosecutor. McBurrows renewed his motion for a mistrial and further requested that the State’s file be copied and filed under seal for purposes of appellate review. The trial court stated that most of the State’s file consisted of notes prepared for trial, and it denied McBurrows’s motions.

The trial court’s denial of McBurrows’s motion to copy and seal the prosecutor’s file for use by the appellate courts forms the basis of his enumeration of error. McBurrows, however, makes no specific claim that any particular exculpatory evidence was in fact suppressed. Rather, he asks that we remand the case for the trial court to conduct another in camera inspection. Since McBurrows does not claim that exculpatory evidence was withheld, he “has no grounds to appeal the trial court’s review of the prosecutor’s file. Any error on the part of the trial court in refusing to make a record of the in camera inspection was harmless.” (Citations and punctuation omitted.) Jenkins v. State, 229 Ga. App. 556 (1) (494 SE2d 311) (1997); see also Dempsey v. State, 279 Ga. 546, 548 (3) (615 SE2d 522) (2005) (holding that appellate courts will not review a trial court’s in camera inspection based on mere speculation that there might be additional material which should have been found and produced for the defense).

6. McBurrows next contends that during its opening statement, the State improperly referred to evidence about the nontestifying bystander in violation of the trial court’s ruling not to do so. The record shows that prior to trial, McBurrows filed a motion in limine to preclude references to the hearsay testimony regarding the bystander. Contrary to McBurrows’s suggestion, however, the trial court denied his motion in limine on the ground that the hearsay testimony was part of the res gestae and helped to explain the second victim’s conduct. In light of the trial court’s ruling that the challenged testimony was admissible, the prosecutor’s opening remarks referring to this testimony did not amount to reversible error. See Mitchell v. State, 271 Ga. 242, 243 (2) (516 SE2d 782) (1999); Waldrip v. State, 266 Ga. 874, 881 (4) (471 SE2d 857) (1996).

7. McBurrows contends that the trial court made several errors in its charge to the jury. The record shows that after the jury charge was given, the trial court asked the defense if it had any exceptions to the jury charge, and McBurrows responded “[n]ot on that.” Since McBurrows failed to object to the jury charge as given, we review his claims only for plain error. See OCGA § 17-8-58 (b); White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012). The “plain error” test

authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings. Satisfying all four prongs of this standard is difficult, as it should be.

(Citations and punctuation omitted.) Lake v. State, 293 Ga. 56, 59 (5) (743 SE2d 414) (2013).

Here, we need not decide whether the challenged charges were erroneous, because even if we assume that the charges given were erroneous and that such errors were obvious, there is no plain error because McBurrows has not shown that the errors affected the outcome of the proceedings. Lake, supra, 293 Ga. at 59 (5). Notably, we have reviewed the entirety of the jury instructions as given and conclude that they were not confusing or misleading. “[A]n erroneous charge does not warrant a reversal unless it was harmful and, in determining harm, the entirety of the jury instructions must be considered.” Bulloch v. State, 293 Ga. 179, 188 (4) (744 SE2d 763) (2013). Moreover, any error in the jury charge was harmless where, as here, there is overwhelming direct evidence of guilt. See Durham v. State, 292 Ga. 239, 241 (3) (734 SE2d 377) (2012); Marshall v. State, 285 Ga. 351, 354 (5) (676 SE2d 201) (2009). Accordingly, we conclude that there is no plain error in the jury charge. See Durham, supra, 292 Ga. at 241 (3).

Decided November 7, 2013

Reconsideration denied December 6, 2013.

John W. Kraus, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       McBurrows was charged in two separate indictments with offenses against two separate victims, and the indictments were consolidated for trial. McBurrows was also charged with and found guilty of two counts of aggravated assault with intent to rob (OCGA § 16-5-21 (a) (l)),but the trial court merged these counts into his convictions for armed robbery. The State dead docketed the additional charges of possession of a firearm by a convicted felon (OCGA § 16-11-131 (b)).

         Randolph v. State, 246 Ga. App. 141, 142 (538 SE2d 139) (2000).

       McBurrows also claims that the witness stated that McBurrows needed money, but the transcript shows that the witness made no such statement.

       The first victim also testified that when she was shown the photo lineup, she immediately identified McBurrows as the person who robbed her, which was consistent with the comment on her admonition sheet that it was an “Instant ID.”

       As indicated in Division 3 (a) above, the trial court also denied McBurrows’s objection to the hearsay testimony when it was given.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A13A1504.
    SMITH v. CSX TRANSPORTATION, INC.
    (751 SE2d 604)
   Branch, Judge.

Larry G. Smith suffered a knee injury when he slipped and fell while ascending a set of stairs at a facility owned and operated by his then-employer, CSX Transportation, Inc. (“CSX”). Smith subsequently filed suit against the railroad seeking to recover for the injuries he sustained as a result of his accident. The case went to trial, and the jury returned a verdict in favor of CSX. The trial court entered judgment on that verdict, and Smith now appeals, asserting that the trial court erred in allowing CSX to introduce evidence of his employment disciplinary record. For reasons explained below, we find no error and affirm.

The record shows that on April 6, 2004, Smith was in the administrative building at the CSX facility in Walbridge, Ohio, to attend a meeting of the local safety committee. Smith was attending this meeting in his capacity as a local chairman of the United Transportation Union (“UTU”). After he entered the building, Smith went into the men’s restroom on the first floor and then into the union office, which was also located on the first floor. When Smith left the union office, he began to proceed to the safety meeting, being held on the building’s second floor. As he began to ascend the stairs, Smith placed his left foot on the second step and slipped and fell, injuring his left knee. An inspection conducted immediately after Smith’s fall revealed that there was a small circle of soap, approximately one inch in diameter, on the second step. Soap had also been “tracked” onto the third step, and there was soap on the bottom of Smith’s left work boot. This soap was the same kind that was used in the building’s restrooms.

Smith filed suit against CSX under the Federal Employers’ Liability Act (“FELA”), 45 USC § 51 et seq., which “provides a federal tort remedy for railroad employees injured on the job, [while] working within the scope of their employment.” (Footnote omitted.) Zeagler v. Norfolk Southern R. Co., 317 Ga. App. 302, 303 (730 SE2d 657) (2012). “Activities within the scope of employment include those that are necessarily incidental to the employment, even if the employee is off duty, but not those undertaken for a private purpose and having no causal relationship with the employment.” (Footnote omitted.) Smith I, 306 Ga. App. at 898. See also Fowler v. Seaboard Coastline R. Co., 638 F2d 17, 20 (5th Cir. 1981) (“the proper test for scope of employment in [a] FELA case [is] whether the act was one which the employer might reasonably have foreseen and which the employee might reasonably have thought necessary in the interest of or in the benefit of the employer”). To prevail on his FELA claim, Smith was required to prove “that he was protected by FELA at the time of injury; that CSX was negligent in that it breached its duty to exercise reasonable care under the circumstances to provide Smith a reasonably safe place in which to work; and that CSX’s negligence played some part in Smith’s injury.” (Footnote omitted.) Smith I, 306 Ga. App. at 898-899.

Smith’s theory of liability was that a CSX employee had dripped or spilled soap on the stairs, most likely while transporting soap to the building’s second floor restrooms. In support of this theory, Smith presented evidence showing that the building’s janitorial closet was located on the first floor and that to get soap to the second floor restrooms the soap would have to be carried up the stairway on which he fell. CSX disputed this theory and introduced evidence showing that the staircase had been mopped the day before Smith’s fall sometime between 4:00-5:00 p.m.; that CSX employees had ascended and descended the stairs beginning at approximately 6:30 a.m. on the morning Smith fell and that none of them had reported seeing any soap on the stairs; and that the step on which Smith slipped was the only step on which any alleged accumulation of soap appeared. The railroad also introduced testimony showing that open soap containers were never carried up and down the stairs. Rather, the soap came in bags encased in cardboard containers, and these containers were placed into the soap dispensers. Thus, the soap dispensers were refilled by taking out the empty box and replacing it with a new box. CSX argued that these facts failed to show any negligence on its part.

CSX also disputed that Smith was acting within the scope of his employment at the time of his injury, because hours before Smith’s fall he had been placed “out of service” for a safety violation. CSX introduced the testimony of Jim Horner and Justin Forro, two CSX supervisors who were conducting operational testing at several CSX facilities during the early morning hours of April 6, 2004. These tests involved observing employees as they were working to ensure that they were complying with the railroad’s safety rules. While at the rail yard in Wixom, Ohio, Forro and Horner observed Smith dismounting a moving locomotive, in violation of a safety rule. Horner immediately called Smith over for a conversation and informed him that he was “up for dismissal” and that he was being placed out of service. An out-of-service status means that an employee is relieved of his job duties until further notice and during the time an employee is out of service, he is not to be on CSX property for any reason without permission. After informing Smith he had been placed out of service, Horner and Forro escorted Smith to his car to ensure that he left the property. According to Forro, such an escort would be common under the circumstances to make sure that the employee in question did not “have a mishap. I mean . . . you know, if you’re up for dismissal, you start grasping at straws sometimes.”

At 4:56 a.m. on April 6, 2004, Forro sent an e-mail informing crew management that Smith was out of service and should not be called in to work. Additionally, the CSX computers were updated to reflect Smith’s out-of-service status. When asked if Smith’s out-of-service status was made clear to Smith before he left the rail yard, both Forro and Horner testified that it was, with Forro explaining that Smith “was very aware of [his out-of-service status]. I mean, you don’t normally get escorted out of the building” by a supervisor.

Smith disputed the assertion that he had been placed out of service in the early morning hours of April 6 or that he had been informed of this alleged change in his employment status prior to the time he arrived at the Walbridge facility for the safety committee meeting. Although Smith acknowledged that Forro and Horner had spoken with him after observing his safety violation, Smith claimed the supervisors told him they would contact him the next day to discuss the matter.

Prior to trial, Smith filed a motion in limine seeking to exclude any evidence of his prior disciplinary record at the railroad. CSX opposed this motion, arguing that Smith’s history of disciplinary problems and the fact that as a result of his prior disciplinary record he was “up for dismissal” following his latest safety violation was relevant to Smith’s claim for lost future wages. CSX also claimed that this evidence was relevant to the defense theory that, fearing he was about to be fired for his latest safety violation, Smith planted the soap on the steps and staged his accident. On the morning trial began, the court ruled that limited evidence of Smith’s disciplinary record would be allowed. Specifically, the court allowed CSX to introduce the fact that Smith had been disciplined in the past, the dates the discipline was imposed, and the sanction imposed on him as a result of each disciplinary action; the court did not allow the railroad to introduce the reason underlying any prior disciplinary action taken against Smith. The trial court found that this evidence was relevant because it could “be used by the jury to evaluate what [Smith’s] future earning capacity with [CSX] or any other railroad might have been.”

On cross-examination, CSX asked Smith if he recalled receiving eight different disciplinary sanctions between May 1994 and October 2003. Smith denied any recollection of four of the first five incidents, testifying that he remembered only that he “was suspended a couple of times, went through the appeals process and got the [suspension] time erased and everything.” With respect to the disciplinary action that resulted in Smith being suspended for thirty days in June 1998, Smith testified that he remembered being suspended that year, but that the suspension was overturned through the appeals process. Smith also acknowledged that he could recall receiving disciplinary suspensions in April, May, and October of 2003.

On appeal, Smith contends that the trial court erred in allowing this evidence concerning his disciplinary record because it was irrelevant to the issue of liability or damages and that it was highly prejudicial. We disagree.

Atrial court’s ruling that evidence is relevant “will not be reversed absent abuse of discretion.” Ga. Dept. of Corrections v. Couch, 312 Ga. App. 544, 549 (3) (718 SE2d 875) (2011). “This is so because trial courts, unlike appellate courts, are familiar with a piece of litigation from its inception, hear first-hand the arguments of counsel, and consider disputed evidence within the context of an entire proceeding.” (Citation omitted.) A.A.L., Inc. v. Colonial Pipeline Co., 280 Ga. App. 237, 238 (1) (633 SE2d 560) (2006). Thus, as an appellate court we “defer to the trial court with regard to the admission of evidence, unless the lower court’s decision is so flawed as to constitute an abuse of discretion.” (Citation and punctuation omitted.) Id. Moreover, “unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.” (Punctuation omitted.) Ahmed v. Clark, 301 Ga. App. 426, 429 (688 SE2d 361) (2009). Even “[e]vidence of doubtful relevancy... should be admitted and its weight left to the jurors.” Id. And if evidence “is competent for any purpose,” its admission does not constitute error. (Citation and footnote omitted.) Id.

Smith asserted that the knee injury he sustained in his fall left him permanently disabled, and sought to recover his lost future wages. The evidence supporting the amount of lost future wages Smith was claiming consisted solely of Smith’s testimony regarding the salary and benefits he would have received under his union contract from the time of the accident through June 30,2012, the date he had planned to retire. Given that Smith was seeking to recover a definite amount of salary and benefits that he contended he would have received but for his injury, we find that CSX was entitled to introduce evidence showing that, because his job was in jeopardy, Smith might not have received that amount. Accordingly, the trial court did not err in finding that Smith’s disciplinary record, and the fact that he was “up for dismissal” as a result of that record, was relevant to Smith’s claim for lost future wages.

Although there is little case law on this issue, one court addressing this precise question found that evidence of a railroad employee’s disciplinary record was relevant to his damages claim under FELA. National R. Passenger Corp. v. McDavitt, 804 A2d 275 (D.C. App. 2002). In that case, McDavitt, a railroad engineer, sued his employer under FELA for injuries he suffered in a train derailment, alleging that the accident had left him totally and permanently disabled. To support his claim for lost wages and lost earning capacity, McDavitt presented the testimony of an economic expert who opined as to McDavitt’s net wage loss from the date of the accident to the date of trial and as to the present value of his lost future earning capacity. Id. at 289 (III) (A). The expert based his opinion on the assumption that but for his injuries McDavitt would have worked as a railroad engineer until the age of 65. Id. At trial, McDavitt’s employer sought to introduce McDavitt’s disciplinary record, arguing that it was relevant to show that the assumptions of McDavitt’s economic expert were incorrect. Id. Specifically, the employer argued that McDavitt’s disciplinary record, together with his conduct related to the accident resulting in his injury, would have “rendered] him unemployable as a locomotive engineer in the future.” Id. The trial court refused to allow the introduction of McDavitt’s disciplinary record, however, on the grounds that it would unduly prejudice McDavitt as to the issue of liability. Id. at 290-291 (III) (B). The appellate court reversed, reasoning:

In evaluating lost earning capacity, the plaintiff’s occupational abilities, industriousness, work habits and experience are relevant. See, e.g., Bower v. O’Hara, 759 F2d 1117, 1123 (3d Cir. 1985) (holding that proffered testimony of former employer that plaintiff was an unreliable worker “was plainly relevant to the issue of damages, as it bore on his claim for loss of earning capacity”) . . . The plaintiff’s work history, good or bad, bears on whether, how, and how long the plaintiff probably would have been employed had he not been injured. . . . Thus, McDavitt’s railroad disciplinary record was relevant to his claim for lost earnings. His history of rule infractions and resulting interruptions of employment indicated, at least arguably, that his future as a locomotive engineer was clouded and uncertain even before he became disabled. That history therefore undercut the optimistic assumptions of McDavitt’s economist and could have been used by Amtrak’s expert to support a lower lost earnings projection.

(Citations omitted.) Id.

This reasoning is in harmony with Georgia law, which provides that evidence relevant to lost earning capacity includes the plaintiff’s “earnings before the injury, earnings after the injury, probability of increased or decreased earnings in the future, considering the capacity of the injured party, effects of sickness and old age, etc.” (Citation and punctuation omitted.) Myrick v. Stephanos, 220 Ga. App. 520, 521 (2) (472 SE2d 431) (1996). Accordingly, we find the rationale of McDavitt persuasive and applicable to the current case. We therefore conclude that the trial court did not abuse its discretion in ruling that limited evidence of Smith’s disciplinary record was relevant and admissible. The jury could consider that evidence, together with the evidence showing that as a result of his safety violation on the early morning hours of April 6 Smith was in danger of losing his job, in determining whether Smith had proven his claim for lost future wages. Id.; McDavitt, at 290 (III) (B). Cf. Martinez v. Union Pacific R. Co., 82 F3d 223, 227-228 (IV) (8th Cir. 1996) (trial court did not err in excluding evidence of plaintiff’s termination from railroad as a result of the accident in which he was injured where his economic expert testified that prior to his injury, the plaintiff could have worked for an automotive body repair business, a job which he had done in the past and was qualified for, at the same wage he had earned at the railroad).

Additionally, we find that the evidence of Smith’s disciplinary record was relevant to CSX’s theory that, fearing he was about to lose his job, Smith staged his accident. In reaching this conclusion, we emphasize that Smith’s disciplinary record was by no means the only evidence supporting this theory of defense. Other evidence included the fact that hours before the accident Smith had been placed out of service and informed that he was up for dismissal; that he understood that being out of service meant that he was not to go on CSX property without permission; that he nonetheless went to the Walbridge facility for a safety committee meeting; that while serving on the safety committee was one of his duties as a union representative, Smith’s attendance at the meeting in question was not mandatory; that accumulated soap was present only on the step where Smith slipped and fell; that employees who had traveled the stairs earlier that morning had not reported seeing any soap on the steps; and that shortly before his fall Smith, by his own admission, had been in a restroom where soap was available. Given these circumstances, the trial court did not err in admitting the limited evidence of Smith’s disciplinary record. See Tucker Nursing Center v. Mosby, 303 Ga. App. 80, 84 (2) (692 SE2d 727) (2010) (“[Relevant evidence includes acts or circumstances which serve to elucidate or throw light upon a material issue”) (citations and punctuation omitted).

Decided November 21, 2013

Reconsideration denied December 9, 2013

Michael J. Warshauer, Douglas C. Dumont, for appellant.

Casey Gilson, James E. Gilson, Karen R. Dunbar, Hall, Bloch, Garland & Meyer, Daryl G. Clarida, for appellee.

Finally, we do not find that any potential prejudice to Smith resulting from the admission of disciplinary sanctions previously imposed against him substantially outweighed the probative value of this evidence. As noted above, the evidence of Smith’s disciplinary record was limited, in that CSX could not introduce the nature of Smith’s conduct that resulted in disciplinary action against him. And Smith offered rebuttal evidence with respect to his disciplinary record, testifying that one or more of the suspensions had been overturned on appeal. Smith also asserted that other disciplinary citations were false, explaining that he was cited for infractions on at least two occasions when he was not even at work. According to Smith, these baseless citations resulted from the fact that because of his union activities, railroad management did not like him and had placed “a target on his back.” One of Smith’s colleagues corroborated Smith’s testimony in this regard, explaining that Smith was an “aggressive” union representative who “irritated” railroad management. Given these circumstances, and considering all of the other evidence introduced at trial, we cannot say the trial court abused its discretion in finding that the probative value of the evidence concerning Smith’s disciplinary record outweighed any potential prejudice to Smith.

Because the evidence at issue was relevant to the issues of both liability and damages, and because its probative value was not substantially outweighed by any potential prejudice to Smith, we find no abuse of discretion by the trial court in admitting this evidence. We therefore affirm the order of judgment entered by the trial court.

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur in judgment only.

       The current appeal represents the second appearance of this case before this Court. After a jury returned a verdict in favor of CSX in a prior trial, Smith appealed the judgment. We reversed, finding that a federal OSHA regulation requiring stair treads to be reasonably slip resistant and have nosings of a nonslip finish applied to the railroad building where Smith fell, and that therefore the trial court had erred in refusing to instruct the jury that CSX’s alleged violation of that regulation was evidence of negligence. Smith v. CSX Transp., 306 Ga. App. 897, 903 (2) (703 SE2d 671) (2010) (“Smith I”). The Supreme Court of Georgia affirmed this decision, and the case was remanded for a new trial. CSX Transp. v. Smith, 289 Ga. 903 (717 SE2d 209) (2011). It is the second trial that is at issue in this appeal.

       The “local chairman” title meant that Smith was the union representative for railroad conductors and brakemen working in five different railroad terminals in the northern part of the CSX system.

       It is unclear whether the trial court found that this evidence was also relevant to the defense theory that Smith, fearing for his job, had staged the accident. Just as the trial court began to rule on Smith’s motion in limine, the following appears in the transcript: “[Whereupon a technical error occurred for approximately five minutes in the taking down of the proceedings and is not contained herein.]” We have discerned the trial court’s finding regarding the evidence’s relevance to Smith’s claim for lost future wages from comments made by the trial court during a discussion with Smith’s attorney, which occurred after the trial court found the evidence admissible.

       The dates of the disciplinary sanctions were May 1994, April 1997, February 1998, June 1998, February 2002, March 2002, April 2003, May 2003, and October 2003.

       Under Georgia law, a plaintiff asserts a claim for lost earning capacity where he seeks to recover earnings lost as a result of a physical injury that he contends left him permanently or totally disabled. Myrick v. Stephanos, 220 Ga. App. 520, 521 (2) (472 SE2d 431) (1996). “[A] claim for ‘lost earning capacity’ embraces a recovery for lost future earnings.” (Citations omitted.) Id.

       Despite Smith’s assertion to the contrary, our holding in Norfolk Southern R. Co. v. Schumpert, 270 Ga. App. 782 (608 SE2d 236) (2004), does not require a different result. Schumpert simply held that a railroad employee’s post-accident termination could not bar his FELA claim for damages resulting from injuries sustained in that accident. Id. at 786-787 (2). See also Pothul v. Consolidated Rail Corp., 94 FSupp.2d 269, 271-272 (II) (N.D. N.Y. 2000). Here, although the record reflects that Smith was terminated for cause approximately one year following his fall, the trial court did not permit CSX to introduce that fact into evidence.


author: Dillard, Judge.

text:
    A13A1580.
    CARTLEDGE v. MONTANO et al.
    (750 SE2d 772)
   Dillard, Judge.

In this medical-malpractice action, Emma Cartledge sued Jolene Montano, M.D. and her practice group, Obstetrics and Gynecology Associates of Augusta, P.C. (collectively “Montano”), alleging that she suffered serious injuries as a result of Dr. Montano’s negligent performance of an intrauterine surgical procedure. On interlocutory appeal, Cartledge contends that the trial court erred in (1) granting Montano’s motion in limine to exclude the testimony of Cartledge’s medical expert; and (2) denying her motion in limine to exclude evidence regarding the fact that she had previously undergone abortion procedures. For the reasons set forth infra, we reverse the trial court’s grant of Montano’s motion in limine but affirm its denial of Cartledge’s motion in limine.

The record shows that in March 2005, Cartledge was experiencing abnormal uterine bleeding and irregular menstrual cycles and, thus, sought treatment from Dr. Montano, anobstetrician/gynecologist. After an ultrasound indicated a possible polyp or fibroid on the interior lining of Cartledge’s uterus, Dr. Montano recommended that Cartledge undergo a surgical procedure known as a cervical dilation and uterine curettage (“D & C”) with a hysteroscopy. As Dr. Montano explained to Cartledge during an April 2005 appointment, these procedures entail dilating the cervix, distending the uterus with a laparoscopic solution such as Sorbitol, inserting a small scope into the uterus to evaluate its lining, and then scraping the lining to remove the abnormal growth.

On May 4, 2005, Dr. Montano performed the D & C and hysteroscopy and removed what she believed to be a fibroid from the lining of Cartledge’s uterus. At the conclusion of this procedure, Dr. Montano noted that approximately 1,500 milliliters of the Sorbitol fluid used during the surgery had not been reclaimed after suctioning. And although Dr. Montano was aware that such a deficit between the amount of Sorbitol used during surgery and the amount reclaimed following the procedure could indicate a perforation, in this instance, she believed that the discrepancy was due to the fact that a significant amount of the fluid saturated the drapes covering Cartledge and spilled onto the operating room floor.

After the surgery, Cartledge was discharged from the hospital; however, over the course of the next couple of days she suffered some bleeding and abdominal pain. On May 7, 2005, after experiencing nausea and severe pain in her abdominal area during a bowel movement, Cartledge returned to the hospital emergency room. And following a series of diagnostic tests, two surgeons performed a laparotomy and determined that Cartledge’s uterus and bowel had been perforated. In addition, the surgeons discovered necrosed tissue, blood, and nearly two liters of fluid in Cartledge’s abdominal area. Consequently, the surgeons repaired the perforations and performed a temporary colostomy to bypass the damaged portion of Cartledge’s bowel. Ultimately, Cartledge underwent three additional surgical procedures to reverse the colostomy and completely treat the perforations to her bowel and uterus.

On April 27, 2007, Cartledge filed a medical-malpractice action against Dr. Montano and her practice group, alleging that Dr. Montano’s negligent performance of the D & C and hysteroscopy procedures resulted in the perforation of Cartledge’s uterus and bowel. With her complaint, Cartledge included the affidavit of Dr. Bruce Halbridge, a medical expert in gynecology and gynecological surgery. And in his affidavit, Dr. Halbridge averred that he was currently licensed as a practicing obstetrician/gynecologist and opined that Dr. Montano breached the standard of care by, inter alia, failing to perform a bimanual examination of Cartledge to determine the position of her uterus before dilating her cervix; failing to sound the uterus to determine its depth prior to dilation; failing to recognize that she perforated Cartledge’s uterus; failing to rule out perforation after more than 1,000 milliliters of hysteroscopic fluid could not be accounted for at the conclusion of the surgery; and failing to monitor Cartledge for signs of uterine perforation.

Shortly after Cartledge filed her complaint, Montano answered, and during the ensuing discovery, Dr. Montano, Dr. Halbridge, defendant’s expert Dr. Dolan, and several of the other doctors involved in Cartledge’s treatment were deposed. On September 8,2010, Montano filed a motion in limine seeking to exclude portions of Dr. Halbridge’s testimony that allegedly exceeded the scope of his expertise. Cart-ledge responded, and shortly thereafter, she filed a motion in limine seeking to exclude any testimony regarding the fact that she had previously undergone several abortions. But as of September 2012, approximately one month before the matter was scheduled to be tried, the trial court had not ruled on either parties’ motions.

Consequently, on September 15, 2012, Cartledge filed a second motion in limine to exclude any evidence of her prior abortions. And less than two weeks later, Montano filed a second motion in limine regarding Cartledge’s expert—this time seeking to exclude all of Dr. Halbridge’s testimony. Then, on October 24, 2012, the trial court issued an order granting defendant’s motion in limine to exclude Dr. Halbridge’s testimony. Specifically, the trial court concluded that Dr. Halbridge was not qualified to testify because he stated during his deposition that he does not perform hysteroscopic removal of fibroids ■and because his testimony did not rely on the evidence in the record. On the same day, the trial court also issued an order denying Cartledge’s motion in limine to exclude evidence of her prior abortions, finding that such evidence was relevant given the testimony of defense witnesses that abortions generally increased the risk of uterine perforation.

Subsequently, the trial court issued certificates of immediate review as to the October 24, 2012 orders, and Cartledge filed an application for interlocutory review, which this Court granted. This appeal follows.

At the outset, we note that any issue regarding the admissibility or exclusion of expert testimony “rests in the broad discretion of the trial court, and consequently, the trial court’s ruling thereon cannot be reversed absent an abuse of discretion.” Furthermore, we similarly review a trial court’s ruling on a motion in limine for an abuse of discretion. And a motion in limine is properly granted when “there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.” With these guiding principles in mind, we turn now to Cartledge’s specific claims of error.

1. Cartledge contends that the trial court erred in granting Montano’s motion in limine to exclude the testimony of Dr. Halbridge on the grounds that he was not qualified under OCGA § 24-9-67.1 (c) to provide an expert opinion on hysteroscopic removal of fibroids and that his testimony was speculative and, therefore, unreliable. We agree that the trial court erred.

The relevant portion of Georgia’s expert-witness statute, former OCGA § 24-9-67.1 (c), provides as follows:

Notwithstanding the provisions of subsection (b) of this Code section and any other provision of law which might be construed to the contrary, in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:
(1) Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and
(2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue ... .

In construing this statute, the Supreme Court of Georgia has held that “the requirement that the expert have actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given means that the plaintiff’s expert does not have to have knowledge and experience in the same area of practice/ specialty as the defendant doctor.” Rather, the issue is whether “the expert has knowledge and experience in the practice or specialty that is relevant to the acts or omissions that the plaintiff alleges constitute malpractice and caused the plaintiff’s injuries.” More generally, under the Supreme Court of the United States’s opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., expert testimony is only admissible if it is both: “(1) relevant and (2) reliable, and an expert opinion is ‘relevant’ if it will assist the trier of fact to understand the evidence or to determine a fact in issue.” And disputes as to an expert’s credentials are “properly explored through cross-examination at trial and go to the weight and credibility of the testimony, not its admissibility.”

In the case sub judice, Cartledge’s medical expert, Dr. Halbridge, testified that he has been board certified in obstetrics and gynecology for over 30 years and that he is familiar with the standard of medical care relevant to D & C, hysteroscopic procedures, and intrauterine bleeding. Additionally, Dr. Halbridge testified that as part of his medical practice he performs one or two D & C procedures per week and approximately two hysteroscopies per month. Dr. Halbridge further testified that he did not perform fibroid removal during hysteroscopic procedures, explaining that most of his patients have “large fibroids and they would not be suitable and could not be removed through the scope doing a D & C.” But he added that as part of his practice he does “remove polyps through the scope.”

Seizing on this testimony, the trial court ruled that Dr. Halbridge was not qualified to offer his opinion in this case because he admitted that he did not perform hysteroscopic fibroid removal, which was the procedure allegedly at issue here, and, therefore, did not possess the experience required by the statute. However, Dr. Halbridge testified that he had significant experience in removing polyps through hysteroscopic procedures, and we can find no evidence in the record, or in the trial court’s order granting Montano’s motion in limine, indicating that the removal of fibroids via D & C and hysteroscopy is markedly different from the removal of polyps via such procedures. In fact, the evidence in the record belies the contention that the difference between these two surgical procedures is significant. Specifically, Dr. Montano testified that she decided on D & C with hysteroscopy as treatment for Cartledge based on the ultrasound indicating “the possibility of a blood clot or polyp.” Her preoperative diagnosis for Cartledge documented in her operative report echoed this uncertainty stating, “[djysfunctional uterine bleeding, pelvic pain, and questionable endometrial fibroid or polyp.” It was only after the surgery was completed that Dr. Montano opined that she removed a fibroid rather than a polyp—an opinion that may be incorrect according to Montano’s own expert witness. Indeed, when testifying regarding his experience performing the procedures at issue, Montano’s expert made no distinction between the manner in which he removes fibroids versus polyps through hysteroscopic procedures. Thus, the trial court’s finding is based on a distinction without a difference.

Moreover, even if there was evidence in the record indicating that removing fibroids via D & C and hysteroscopy is a markedly different procedure than removing polyps via that same method, “this Court has concluded that the statutory ‘area of practice or specialty in which the opinion is to be given’ is dictated not by the apparent expertise of the treating physician, but rather by the allegations of the complaint concerning the plaintiff’s injury.” Thus, it is essential that the expert “have actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given.”

Here, Cartledge’s complaint alleges that Dr. Montano did not perform a bimanual examination or sound the uterus prior to dilating her cervix, which resulted in her injury during the surgery. In support of Cartledge’s contentions, Dr. Halbridge opined that Dr. Montano’s failure to perform these examinations led to her perforating Cart-ledge’s uterus while dilating the cervix. And there was sufficient evidence in the record to find that Dr. Halbridge possessed the requisite knowledge and experience under OCGA § 24-9-67.1 (c) to offer opinions on these specific issues. Accordingly, we conclude that the trial court abused its discretion in granting Dr. Montano’s motion in limine on the ground that Dr. Halbridge lacked the knowledge and experience required to testify in this matter.

Furthermore, we agree that the trial court likewise erred in excluding Dr. Halbridge’s testimony on the ground that it was unreliable. As previously noted, “[u]nder Daubert, expert testimony is only admissible if it is both: (1) relevant and (2) reliable, and an expert opinion is ‘relevant’ if it will assist the trier of fact to understand the evidence or to determine a fact in issue.” And in his deposition, Dr. Halbridge opined that Dr. Montano failed to perform a bimanual examination to determine the position of Cartledge’s uterus and also failed to sound the uterus to determine its depth, and that these failures resulted in her perforating Cartledge’s uterus. The trial court ruled that this testimony was unreliable and speculative because Dr. Halbridge ignored Dr. Montano’s testimony, in which she claimed that she did, in fact, perform a bimanual exam and sound Cartledge’s uterus prior to surgery.

But the appropriate standard for assessing the admissibility of the opinion of an expert is “not whether it is speculative or conjectural to some degree, but whether it is wholly so.” And where evidence in the case allows a reasonable inference to be drawn by the expert witness, “the expert may render an opinion for the jury to weigh.” Indeed, Daubert’s role of “ensuring that the courtroom door remains closed to junk science is not served by excluding testimony such as [this expert’s] that is supported by extensive relevant experience [, and s]uch exclusion is rarely justified in cases involving medical experts . . . .”

And here, while it is certainly true that Dr. Montano testified that she performed a bimanual examination and that she sounded Cartledge’s uterus prior to performing the hysteroscopic surgery, she also acknowledged that she did not document either procedure in her operative notes. Additionally, one of the nurses assisting the surgery could not recall whether or not Dr. Montano performed these procedures. It is in light of this omission by Dr. Montano that Dr. Halbridge opined that she failed to perform these procedures that would have allowed her to determine the position and depth of Cartledge’s uterus. Accordingly, Dr. Halbridge’s opinion was not wholly based on speculation. And given that the credibility of the expert and the weight to be given to his opinion were “matters to be addressed by the jury[,]” the trial court in this matter abused its discretion in concluding that Dr. Halbridge’s testimony was inadmissible.

2. Cartledge also contends that the trial court abused its discretion in denying her motion in limine to exclude evidence that she had previously undergone several abortion procedures. Specifically, she argues that the prejudicial effect of such evidence outweighs its probative value. We disagree.

It is well established that “[e]vidence having a tendency to establish facts in issue is relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence.” Thus, even if the evidence offered by a party is “of doubtful relevancy, it should nevertheless be admitted and its weight left to the jury.” Nevertheless, a trial court may exclude relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury.” And when an issue is raised as to whether the probative value of evidence is outweighed by its “tendency to unduly arouse the jury’s emotions of prejudice, hostility, or sympathy, a trial court’s decision regarding admissibility is a matter of discretion.”

In this matter, both Dr. Montano and her expert witness testified that abortion procedures can compromise or weaken the uterine wall and render it more susceptible to perforation. Indeed, when questioned as to how the perforation of Cartledge’s uterus could have occurred, if not during surgery, Dr. Montano theorized that Cart-ledge’s previous abortions and other surgical procedures could have weakened her uterus to the extent that the perforation resulted from her straining during a bowel movement. And although there is no direct or unequivocal evidence that Cartledge’s uterus, in fact, has been compromised by the prior abortion procedures, the radiologist —who conducted the imaging studies on Cartledge after she sought treatment in the hospital’s emergency room—testified that he could not examine all the areas of Cartledge’s uterus and could not specifically identify the area where the perforation occurred. Thus, as Dr. Montano implies, the possibility that a thinning of Cartledge’s uterus led to her injury could not be conclusively eliminated. Given these circumstances, we simply cannot conclude that the trial court abused its discretion in finding that the probative value of this evidence was not substantially outweighed by any potentially prejudicial effect.

Nevertheless, we certainly recognize that evidence of Cartledge’s previous abortion procedures could prejudice her right to a fair trial, and, thus, we take this opportunity to caution the trial court regarding the narrow purpose for which this evidence may be admitted. Specifically, based on this record, this evidence is relevant only for the limited purpose of its potential medical impact, i.e., that the prior abortion procedures could have weakened Cartledge’s uterine wall, possibly leading to a perforation that occurred independently from any allegedly negligent act by Dr. Montano. Accordingly, any evidence pertaining to this issue beyond the mere fact that Cartledge underwent these abortion procedures, that such procedures may cause uterine thinning, and that as a result of those prior procedures the perforation in question may have occurred independently from any alleged negligence, would be substantially prejudicial and, thus, inadmissible.

3. Cartledge further argues that even if the testimony regarding her prior abortions is relevant, she was entitled to a hearing pursuant to OCGA § 24-9-67.1 (d) to determine whether such testimony was scientifically reliable. Again, we disagree.

First, in reviewing the trial court’s order on this issue, it is clear that the court considered the relevant physicians’ deposition testimony regarding the effect of abortion procedures on the uterus, as well as documentary evidence in support of that testimony, before reaching its conclusion to admit the evidence. Second, OCGA § 24-9-67.1 (d) provides: “[u]pon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert’s testimony satisfies the requirements of subsections (a) and (b) of this Code section.” And in construing the language of a statute, the word “ ‘[s]hall’ ordinarily denotes command and not permission, whereas ‘may’ ordinarily denotes permission and not command.” Thus, we cannot conclude that the trial court was required to conduct a hearing on this issue.

In summary, we hold that the trial court abused its discretion in excluding the testimony of Cartledge’s medical expert and, thus, reverse its grant of Montano’s motion in limine. But we also find that the trial court did not abuse its discretion in denying Cartledge’s motion in limine to exclude evidence pertaining to her past abortion procedures. .

Judgment affirmed in part and reversed in part.

Andrews, P. J., and McMillian, J., concur.

Decided November 20, 2013

Reconsideration denied December 9, 2013

James W. Howard, Sharon E. Howard, for appellant.

Fulcher Hagler, Andrew W. Holliday, Susan C. Mulherin, for appellees.

        Carter v. Smith, 294 Ga.App. 590, 591 (1) (669 SE2d 425) (2008) (citation and punctuation omitted).

        See Hankla v. Johnson, 305 Ga. App. 391, 392 (1) (699 SE2d 610) (2010).

        Id. (punctuation omitted) (emphasis supplied).

       Former OCGA § 24-9-67.1 (c), repealed by Ga. Laws 2011, p. 99, § 2. OCGA § 24-7-702 (c), whichbeeame effective January 1,2013, contains language identical to former OCGA § 24-9-67.1 (c), but because the provisions of Georgia’s new Evidence Code “apply to any motion made or hearing or trial commenced on or after” January 1, 2013, the prior Code applies here. See Ga. Laws 2011, p. 99, § 101.

        See former OCGA § 24-9-67.1 (c) (1), (2) (A) (emphasis supplied).

        Nathans v. Diamond, 282 Ga. 804, 806 (1) (654 SE2d 121) (2007) (punctuation omitted); accord Mays v. Ellis, 283 Ga. App. 195, 197 (1) (a) (641 SE2d 201) (2007); Cotten v. Phillips, 280 Ga. App. 280, 284 (633 SE2d 655) (2006).

        Nathans, 282 Ga. at 806 (1) (punctuation omitted).

       509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993).

        Cotten, 280 Ga. App. at 286 (punctuation omitted); see also Daubert, 509 U. S. at 589 (II) (B). We note that former OCGA § 24-9-67.1 (f) provides:
      It is the intent of the legislature that, in all civil cases, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert... and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.

        Cotten, 280 Ga. App. at 286.

        Mays, 283 Ga. App. at 198 (1) (b) (punctuation omitted).

        Cotten, 280 Ga. App. at 284 (punctuation omitted).

        See Mays, 283 Ga. App. at 198-99 (1) (b) (holding that because ultimate issue was whether obstetrician/gynecologist misdiagnosed plaintiff’s pancreatitis, gastroenterologist had the requisite knowledge and experience in the area of practice or specialty in which his opinion was to be given and, thus, was qualified to testify); Cotten, 280 Ga. App. at 287 (holding that ultimate issue was not whether orthopedic surgeon negligently performed surgery, but whether he negligently failed to assess plaintiff’s vascular issues and, therefore, vascular surgeon was qualified to testify).

        Cotten, 280 Ga. App. at 286 (punctuation omitted); see Daubert, 509 U. S. at 589 (II) (B).

        Layfield v. Dep’t of Transp., 280 Ga. 848, 850 (1) (632 SE2d 135) (2006).

        Cox v. Allen, 256 Ga. App. 53, 57 (4) (567 SE2d 363) (2002).

        Cotten, 280 Ga. App. at 286 (punctuation omitted).

        Layfield, 280 Ga. at 852 (1); cf. Whitley v. Piedmont Hosp., Inc., 284 Ga. App. 649, 654 (1) (644 SE2d 514) (2007) (holding that “the fact that an expert’s testimony may be contradictory goes only to the weight or credibility of the testimony and does not render it inadmissible”).

       We note that the trial court’s order granting Dr. Montano’s motion in limine to exclude Dr. Halbridge’s testimony also found that Dr. Halbridge was not qualified to offer medical opinions pertaining to radiology and pathology issues. However, because Cartledge states in her brief that she is not contesting those specific rulings, we need not address them.

        Martin v. Williams, 215 Ga. App. 649, 651 (3) (451 SE2d 822) (1994) (punctuation omitted).

        Kilday v. Kennestone Phys. Ctr., L.P., 296 Ga. App. 818, 819-20 (1) (676 SE2d 271) (2009) (punctuation omitted); see Keener n. Dellinger, 291 Ga. 860, 861-62 (4) (734 SE2d 874) (2012) (“The trial court has wide discretion in determining relevancy and materiality, and furthermore, where the relevancy or competency is doubtful, it should be admitted, and its weight left to the determination of the jury” (punctuation omitted)).

        Sellers v. Burrowes, 302 Ga. App. 667, 671 (2) (691 SE2d 607) (2010) (punctuation omitted).

        Id. (punctuation omitted).

        See American Multi-Cinema, Inc. v. Walker, 270 Ga. App. 314, 319 (4) (a) (605 SE2d 850) (2004) (holding that trial court did not abuse discretion in denying defendant’s motion in limine to exclude evidence that its employee’s actions toward plaintiff were racially motivated even though there was no direct evidence of such).

       It is worth noting here that based on our review of the record, only Dr. Montano opines that Cartledge’s previous abortion procedures may possibly have weakened her uterus to the extent that the perforation could have occurred independently and not as a direct result of the surgery. The other physicians who opined on this issue, including Montano’s expert, testified generally that abortions can cause uterine thinning. Neither party addresses the fact that such evidence may raise an “egg shell plaintiff” issue. See AT Systems Southeast, Inc. v. Carnes, 272 Ga. App. 671, 674 (3) (b) (613 SE2d 150) (2005) (holding that “[i]t has long been the rule that a tortfeasor takes a plaintiff in whatever condition he finds him.” (punctuation omitted)). Thus, any possible implications pertaining to that issue are not before us.

        See former OCGA § 24-9-67.1 (d) (emphasis supplied).

        Ring v. Williams, 192 Ga. App. 329, 330 (2) (384 SE2d 914) (1989); see OCGA § 1-3-3 (10).

        See Village at Lake Lanier, LLC v. State Bank & Trust Co., 314 Ga. App. 498, 501-02 (2) (b) (724 SE2d 806) (2012) (holding that trial court did not abuse its discretion in denying a motion for a Daubert hearing).


author: MCFADDEN, Judge.

text:
    A12A0618.
    THE STATE v. GRUBE.
    (752 SE2d 628)
    Decided December 9, 2013.

      Herbert E. Franklin, Jr., District Attorney, Alan C. Norton, Assistant District Attorney, for appellant.

      William D. Cunningham, for appellee.
   MCFADDEN, Judge.

In State v. Grube, 293 Ga. 257 (744 SE2d 1) (2013), the Supreme Court of Georgia reversed the judgment of this Court in State v. Grube, 315 Ga. App. 885 (729 SE2d 42) (2012). Accordingly, we vacate our earlier opinion and adopt as our own the opinion and judgment of the Supreme Court.

Judgment reversed.

Barnes, P. J., and McMillian, J., concur.


text:
    A12A1129.
    von THOMAS v. THE STATE.
    (752 SE2d 628)
   MCFADDEN, Judge.

In von Thomas v. State, 293 Ga. 569 (748 SE2d 446) (2013), the Supreme Court of Georgia vacated our decision in Thomas v. State, 317 Ga. App. 696 (732 SE2d 780) (2012). The Supreme Court remanded the case to this court with direction that we vacate the decision of the sentencing court and remand to the sentencing court for dismissal of the appellant’s motion to vacate his sentence, von Thomas, supra at 575 (3). Accordingly, for the reasons explained by the Supreme Court in von Thomas, the decision of the sentencing court is hereby vacated and the case is remanded to the sentencing court with direction that it dismiss the motion to vacate the sentence.

Judgment vacated and case remanded with direction.

Barnes, P. J., and McMillian, J., concur.

Decided December 9, 2013.

Abbott & Cone, David C. Abbott, for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.