author: MILLER, Presiding Judge.

text:
    A17A0753.
    SHEATS v. THE KROGER COMPANY.
    (805 SE2d 121)
   MILLER, Presiding Judge.

This is the second appearance of this case in this Court. In Sheats v. Kroger Co., 336 Ga. App. 307 (784 SE2d 442) (2016) (“Sheats I”), we (i) vacated the trial court’s denial of plaintiff Brenda Sheats’ motion for spoliation sanctions against defendant The Kroger Company (“Kroger”); (ii) reversed the trial court’s grant of summary judgment to Kroger on Sheats’ claim for ordinary negligence; and (iii) remanded the case for the trial court to (a) reconsider Sheats’ spoliation claim in light of the Supreme Court’s decision in Phillips v. Harmon, 297 Ga. 386 (774 SE2d 596) (2015), and (b) reconsider Sheats’ ordinary negligence claim in light of the trial court’s disposition on remand of Sheats’ spoliation claim. Sheats I, supra, 336 Ga. App. at 311 (1) (a), 313-314 (6). On remand, after considering the factors set forth in Phillips, the trial court again denied Sheats’ spoliation claim and granted summary judgment to Kroger on Sheats’ claim for ordinary negligence. Sheats appeals, contending that the trial court improperly applied the Phillips factors to her spoliation claim and that summary judgment in favor of Kroger was not warranted on her ordinary negligence claim. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review a trial court’s grant of summary judgment de novo, construing the evidence, and all reasonable conclusions and inferences drawn from it, in favor of the nonmovant.

(Citations and punctuation omitted.) Thomas v. Summers, 329 Ga. App. 250, 250 (764 SE2d 578) (2014); see also OCGA § 9-11-56 (c).

So viewed, and as we stated in Sheats I, the evidence shows:

[O]n November 7, 2011, Sheats was shopping at a Kroger grocery store in Athens. Sheats took a cardboard package containing several glass bottles of Red Rock Golden Ginger Ale off a shelf and placed it in her cart. Sheats then lifted a second pack off the shelf. As she did so, the bottom of the package opened up, all of the glass bottles fell to the floor, and they broke. At least one bottle struck Sheats’ left foot, injuring her.
A store security guard was called to the aisle where the incident occurred. Upon arriving at the scene, the guard found Sheats standing among broken glass and spilled liquid and holding an empty cardboard package with a bottom that was “fully broken open[ ].” When Sheats told the security guard what happened, the guard asked Sheats to step away from the debris, and she asked for the package Sheats was holding. Sheats refused and told the guard that she wanted to keep the package as evidence. The guard replied that she would keep the package as evidence instead. Sheats then complained to the guard about pain in her foot. The guard offered to call an ambulance, but Sheats declined, saying that she might go to a doctor later.
The guard escorted Sheats to the customer service counter at the front of the store, where Sheats told the store manager what happened. Sheats then told the manager that her left foot was hurting and she was going to the hospital. The manager completed a three-page “Customer Incident Report & Investigation Check List,” which had the following statement printed on each page: “This report is being prepared in anticipation of litigation under the direction of legal counsel. It is confidential and is not to be released to any person unless approved by legal counsel and authorized by a member of Kroger management with such authority.” The manager told Sheats that he would forward information about the incident to Kroger’s headquarters, but he was not sure if Kroger’s insurance would pay for treatment of the injury.
Shortly after the incident, the manager inspected the package and the shelf where it had been displayed and observed that both were dry According to the manager,
[f]or some unknown reason, the glue on one side of the bottom of the package failed to stay glued to the other flap. I observed that one of the outside bottom flaps was cleanly separated from the other, inside bottom flap, and the glue was only stuck to one flap. It appeared to me that the glue didn’t stick sufficiently to the other flap[.]
The manager then inspected all of the other Red Rock Ginger Ale packages on the shelf, but observed no similar problem. After inspecting the package, the manager recorded it, for inventory purposes, as a “lost” item due to breakage and put it with outgoing refuse to be discarded. The manager stated in his affidavit that, when he spoke to Sheats after the incident, he did not get the impression that Sheats would later file a lawsuit.
After leaving Kroger, Sheats went to a hospital emergency room. She was subsequently diagnosed with a blood clot in her left big toe and had to have surgery to remove the toenail. Sheats had to wear a protective shoe for two months after her surgery. Additionally, her toenail failed to grow back correctly, and she still had pain in her toe at the time of the summary judgment hearing.

Sheats I, supra, 336 Ga. App. at 308-309.

Sheats sued Kroger, asserting various causes of action, including, as relevant to this appeal, ordinary negligence. Sheats also filed a motion for spoliation sanctions based on Kroger’s disposal of the ginger ale package before she was able to inspect it. The trial court denied Sheats’ spoliation motion on the ground that she had not notified Kroger that she was contemplating litigation before it disposed of the package. Kroger then moved for summary judgment, asserting, in relevant part, that no record evidence showed that the package failure was foreseeable to Kroger. The trial court agreed and granted summary judgment to Kroger.

Sheats appealed, challenging the denial of her motion for sanctions and the grant of summary judgment to Kroger. See Sheats I, supra, 336 Ga. App. at 307-308. We vacated the trial court’s spoliation ruling, explaining that it “was based on the legally incorrect premise that Kroger’s duty to preserve the evidence required actual notice of litigation from Sheats,” and remanded the case for the trial court to reconsider the spoliation motion in accordance with the factors set forth in Phillips, supra, 297 Ga. at 397-398 (II). Sheats I, supra, 336 Ga.App. at 311 (1) (a). Given our ruling on this issue, we also reversed the grant of summary judgment to Kroger on Sheats’ ordinary negligence claim, explaining that whether that claim is a jury issue “cannot be determined until the trial court first determines on remand whether spoliation occurred and, if so, which spoliation sanctions are appropriate.” Id. at 313 (6).

On remand, after addressing the Phillips factors, the trial court again denied Sheats’ motion for spoliation sanctions and granted summary judgment to Kroger on her ordinary negligence claim. This appeal followed.

1. In two related enumerations of error, Sheats challenges the trial court’s conclusion that no sanctionable spoliation occurred. She contends that, under a proper application of the Phillips factors, Kroger had a duty to preserve the cardboard package because it had constructive knowledge that litigation was reasonably foreseeable. We discern no clear error in the trial court’s ruling on the facts of this case.

“The term ‘spoliation’ is used to refer to the destruction [of] or failure to preserve evidence that is relevant to contemplated or pending litigation. Such conduct may give rise to the rebuttable presumption that the evidence would have been harmful to the spoliator.” (Citations and punctuation omitted.) Phillips, supra, 297 Ga. at 393-394 (II); see also OCGA § 24-14-22. This rebuttable presumption may be applied “only in exceptional cases,” and “the greatest caution must be exercised in its application.” (Citation and punctuation omitted.) Phillips, supra, 297 Ga. at 398 (II). “[F]or the injured party to pursue a remedy for spoliation, the spoliating party must have been under a duty to preserve the evidence at issue.” (Citation omitted.) Id. at 394 (II). “[T]he duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence and is triggered not only when litigation is pending” but also when a defendant “knows or reasonably should know that the injured party, the plaintiff, is in fact contemplating litigation.” (Citations omitted.) Id. at 396 (II). In other words, “such notice can be constructive as well as actual.” Id.

Crucially, “a trial court has wide discretion in adjudicating spoliation issues, and such discretion will not be disturbed absent abuse.” (Citation omitted.) Phillips, supra, 297 Ga. at 397 (II). Where a trial court makes findings of fact in ruling on a spoliation claim, this Court will uphold those findings if there is any evidence to support them, i.e., unless they are clearly erroneous. See Wright v. VIF/Valentine Farms Bldg. One, 308 Ga. App. 436, 441 (2), 443 (2) (a) (708 SE2d 41) (2011); Bouve & Mohr, LLC v. Banks, 274 Ga. App. 758, 762 (1) (618 SE2d 650) (2005); accord Kroger Co. v. Walters, 319 Ga. App. 52, 55 (1) (a), (b) (735 SE2d 99) (2012) (concluding that “some evidence” supported the factual findings underlying the trial court’s imposition of spoliation sanctions).

The Phillips Court set out a nonexclusive list of factors that may be considered in determining whether a defendant had constructive notice that a plaintiff was contemplating litigation. See Phillips, supra, 297 Ga. at 397 (II). The Court explained:

[Ljitigation may be reasonably foreseeable to the defendant based on . . . circumstances[ ] such as the type and extent of the injury; the extent to which fault for the injury is clear; the potential financial exposure if faced with a finding of liability; the relationship and course of conduct between the parties, including past litigation or threatened litigation; and the frequency with which litigation occurs in similar circumstances. Thus, it may be appropriate to consider, in determining whether the defendant actually did or reasonably should have foreseen litigation by the plaintiff, not only what the plaintiff did or did not do after the injury and before the evidence in question was lost or destroyed, but also what the defendant did or did not do in response to the injury, including the initiation and extent of any internal investigation, the reasons for any notification of counsel and insurers, and any expression by the defendant that it was acting in anticipation of litigation.

Id.

(a) Type and extent of the injury

As to the first Phillips factor — the type and extent of the injury — the trial court determined that, although Sheats sought emergency room treatment, her injury “did not seem to be extensive,” as it was “limited to her big toe.” In addition to the evidence relied upon by the trial court, we also note that Sheats testified in her deposition that no bones in her foot were broken and that she was discharged from the hospital on the same evening that she received medical attention. Further, Sheats has identified nothing in the record indicating that the incident resulted in any severe or permanent physical limitations. On this record, the trial court’s finding was not clearly erroneous because it is supported by some evidence.

(b) Extent to which fault is clear

With respect to the second factor — the extent to which fault for the injury was clear — the trial court relied largely on the store manager’s affidavit. As discussed above, the manager attested that, following the incident, the cardboard ginger ale package and the shelf on which it had been sitting both were dry, and all other packages of the same product on the shelf were intact. He observed that one of the package’s bottom flaps had “cleanly separated from the other” and surmised that the glue between the flaps had not sufficiently held them together. The manager noted that this issue was not evident when the package was being stocked on the display shelf and that, if a problem had become apparent at that time, the package would have been removed. The manager also attested that, in the 18 years he had worked for the grocery store, he had never encountered this type of package failure, and he knew of no one who had been injured in a similar incident. Consequently, the manager “had no reason to expect or anticipate that the package would come apart.” Based on the manager’s affidavit, the trial court concluded that Kroger need not reasonably have anticipated being found at fault for Sheats’ injury

The evidence above supports this determination. On appeal, Sheats has identified nothing in the record indicating that the package failure was reasonably foreseeable to Kroger. Given the manager’s affidavit, the trial court did not clearly err in finding that (a) the manager had no reason to believe that Kroger could have foreseen and prevented the package failure and (b) for this reason, the manager had no reason to believe that Kroger could be found liable for Sheats’ injury

Sheats contends that Kroger’s very act of disposing of the package forecloses any determination as to whether the package would have revealed that its failure was foreseeable to Kroger and that Kroger therefore should be sanctioned for disposing of it. Although we acknowledge that the facts of this case arguably present a “catch-22” for Sheats on this Phillips factor, we also note that she was free to offer testimony as to anything she — or any other witnesses, for that matter — may have observed that appeared obviously amiss with the ginger ale packaging or display Absent any such record evidence, the trial court did not clearly err in relying on the store manager’s affidavit to conclude that the package failure was not reasonably foreseeable to Kroger.

(c) Potential financial exposure

Turning to the third factor — the potential financial exposure if faced with a finding of liability — the trial court determined that Sheats’ medical bills arising out of the injury totaled less than $2,500 and that she lost wages in the amount of $200. Sheats does not challenge the trial court’s findings in this respect, but contends that “the potential financial exposure could greatly exceed” these amounts, given that she suffered a blood clot, required surgery to remove her toenail, and endured a “two-month recovery time.” However, the record contains no indication that Kroger learned of the full extent of Sheats’ injury and the treatment she required before it disposed of the package. To the contrary, immediately following the incident, Sheats declined the security guard’s offer to seek immediate medical treatment, and there is no evidence that she manifested any physical limitations at the time. Consequently, Sheats has not established clear error on this issue.

(d) Course of conduct

With respect to the fourth factor, it is undisputed that there is no evidence of a course of conduct, including past or threatened litigation, between the parties.

(e) Frequency of similar litigation

As to the fifth factor — the frequency of litigation in similar circumstances — the trial court determined that there was no history of this type of an accident, and, accordingly, there had been no previous litigation arising from similar circumstances. Sheats contends that the court applied an unreasonably narrow interpretation of “similar circumstances” limited to “a person’s big toe injured by a falling soda bottle.” The plain language of the trial court’s order, however, does not support Sheats’ claim that the court used the phrase “similar circumstances” so narrowly. The court’s conclusion in this regard is more properly viewed in light of the manager’s affidavit, in which he attested that he was unaware of a customer or employee who had been injured “by a package failure like the one involved with this ginger ale.” Thus, the trial court’s reference to “similar circumstances” appears more properly to refer generally to objects falling as a result of similar packaging failures, rather than the narrow reading urged by Sheats. On the record in this case, the trial court’s finding on this issue is not clearly erroneous.

(f) Defendant’s response to the injury

Finally, Sheats highlights the “anticipation of litigation” language pre-printed on the “Customer Incident Report & Investigation Check List” used by the manager to memorialize the incident. Sheats contends that “Kroger should be bound by the language it chose to place” on this form.

The very fact that Kroger produced this document during discovery — rather than seeking to protect it as privileged — suggests that Kroger did not itself treat the document as if it in fact had been created in anticipation of litigation. See Chua v. Johnson, 336 Ga. App. 298, 304 (2) (784 SE2d 449) (2016) (a qualified privilege protects from disclosure documents “ ‘prepared in anticipation of litigation ... by or for another party’ ”) (quoting OCGA § 9-11-26 (b) (3)). Indeed, the store manager attested that he completed the incident report “per the normal and customary practice” and that, had he believed that Sheats was contemplating litigation at that time, he would have said so in his report. Moreover, if we were to construe the pre-printed report language as strictly as Sheats requests, this would require courts to ignore the Phillips Court’s instruction that multiple factors may be considered in determining whether litigation was reasonably foreseeable. See Phillips, supra, 297 Ga. at 397 (II). On this record, the trial court had latitude to determine that (a) the incident report form (with the pre-printed “anticipation of litigation” language) routinely was used to report customer incidents, regardless of whether litigation was anticipated, and (b) as a result, the pre-printed language did not, by itself, outweigh the other factors that the court considered in concluding that Kroger need not reasonably have anticipated being sued or found at fault for Sheats’ injury See id. at 397 (II), n. 9 (“The defendant’s duty [to preserve evidence] does not arise merely because the defendant investigated the incident, because there may be many reasons to investigate incidents causing injuries . . . .”).

(g) Conclusion

Given the record in this case, the trial court was entitled to resolve each of the Phillips factors it considered in favor of Kroger. Consequently, the trial court did not clearly err when it determined that litigation was not reasonably foreseeable to Kroger. See Phillips, supra, 297 Ga. at 396-397 (II); Wright, supra, 308 Ga. App. at 441 (2), 443 (2) (a); Bouve & Mohr, LLC, supra, 274 Ga. App. at 762 (1). We again emphasize that when examining the trial court’s decision, this Court must apply a “necessarily deferential standard of review.” Wal-Mart Stores v. Lee, 290 Ga. App. 541, 546 (1) (659 SE2d 905) (2008). Accordingly, we conclude that the trial court did not abuse its wide discretion when it denied Sheats’ request for spoliation sanctions. See Phillips, supra, 297 Ga. at 396-397 (II). We therefore affirm the trial court’s ruling on this issue.

2. Sheats also challenges the grant of summary judgment to Kroger on her ordinary negligence claim. Sheats contends that a material issue of fact remains with respect to whether the package was defective and whether Kroger negligently maintained an unsafe package display We disagree.

As stated above, our review of a grant of summary judgment is de novo. See Thomas, supra, 329 Ga. App. at 250. Where, as here, the moving party shows that there is an absence of evidence to support the nonmoving party’s case, “the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” (Citation and punctuation omitted.) Ellison v. Burger King Corp., 294 Ga. App. 814, 819 (3) (a) (670 SE2d 469) (2008). “[S]peculation which raises merely a conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment.” (Citation and punctuation omitted.) Id.

“The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages.” (Citation and punctuation omitted.) Wilcher v. Redding Swainsboro Ford Lincoln Mercury, 321 Ga. App. 563, 565-566 (1) (743 SE2d 27) (2013).

[T]he situation of the retailer and consumer of packed products is properly governed by the rules of negligence law. Accordingly, retailers owe consumers a duty to supply goods packed by reliable manufacturers, which are without imperfections that may be discovered by an exercise of the care, skill, and experience of dealers in such products generally.

(Citations and punctuation omitted.) Sheats I, supra, 336 Ga. App. at 313 (6).

However,

a retailer who is not the manufacturer of an item is under no obligation to test an article, purchased and sold by him, for the purpose of discovering latent or concealed defects, [and] when he purchases and sells in the usual course of trade, an article in common and general use, without knowledge of its dangerous quality, and with nothing tending reasonably to call his attention thereto, he is not negligent in failing to exercise care to determine whether it is dangerous or not.

(Citation and punctuation omitted.) Wilcher, supra, 321 Ga. App. at 570 (2).

Decided September 8, 2017.

Palmore, Boenig & Associates, Malcolm A. Palmore, Markus Boenig, for appellant.

Gray, Rust, St. Amand, Moffett & Brieske, Matthew G. Moffett, Candis R. Jones, for appellee.

Specifically, Sheats highlights the following evidence in support of her ordinary negligence claim: (i) several bottles fell through a cardboard package as she lifted it off of a shelf; (ii) the package was dry and otherwise intact; and (iii) it appeared to the manager that glue on the package had not sufficiently held it together. Sheats asserts, therefore, that there existed sufficient evidence substantiating that the packaging was defective. Nevertheless, even assuming all of these facts to be true, they shed no light on whether, before the package failed, Kroger had any information that would have put it on notice of the impending failure. To the contrary, the manager attested that the problem with the package was not evident while the display shelf was being stocked and that he did not discover any similar problems with any of the other ginger ale packages. Moreover, as discussed above, Sheats offered no testimony as to anything she or any other witness saw that would have alerted Kroger to problems with the packaging or display.

Absent some record evidence that Kroger should have been on notice of a potential package failure, there is no basis on which a jury could find that Kroger breached a duty it owed to Sheats, other than through speculation and conjecture. See Wilcher, supra, 321 Ga. App. at 565-566 (1), 570 (2); Ellison, supra, 294 Ga. App. at 819 (3) (a); Sirmons v. Derst Baking Co., 221 Ga. App. 127, 127-129 (470 SE2d 515) (1996) (no evidence showed that a defect in a food product, which the manufacturer delivered to the distributor and retailer in a sealed package, was or should have been known to the distributor and retailer). Consequently, the trial court properly granted summary judgment to Kroger on Sheats’ ordinary negligence claim.

For each of the above reasons, we affirm the judgment of the trial court.

Judgment affirmed.

Doyle and Reese, JJ., concur.

       Our decision in Sheats I also addressed several additional claims against Kroger and co-defendant Clayton Distributing Company, Inc. See Sheats I, supra, 336 Ga. App. at 307-308. Those claims are not at issue in this appeal.

       Sheats also claims that the trial court “directly contradict[ed]” our ruling in the prior appeal that, according to Sheats, “Kroger should have reasonably anticipated that [she] was contemplating litigation.” This contention misreads our prior decision. Our ruling on this issue was limited to the narrow proposition that the trial court erroneously concluded “that Kroger’s duty to preserve the evidence required actual notice of litigation from Sheats.” Sheats I, supra, 336 Ga. App. at 311 (1) (a). There would have been no need for us to remand this case for the trial court to re-examine this issue in light of the Phillips analysis had we in fact already made a binding determination as to the outcome of that analysis. See id.

       It is undisputed that Kroger did not manufacture the package at issue. Moreover, in our prior opinion in this case, we affirmed the trial court’s grant of summary judgment to Kroger on Sheats’ res ipsa loquitur claim, as it was undisputed that the package had not been under Kroger’s exclusive control. See Sheats I, supra, 336 Ga. App. at 312 (4).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A17A0794.
    THE STATE v. WALKER.
    (805 SE2d 262)
   Branch, Judge.

After Jerry Walker was indicted for child molestation occurring between January and December 2011, the State filed a notice of its intent to introduce child hearsay evidence, and Walker filed a motion in limine to exclude that evidence. The trial court granted Walker’s motion on the ground that former OCGA § 24-3-16, rather than OCGA § 24-8-820, applied to the case. On appeal, the State argues that OCGA § 24-8-820 should apply We disagree and affirm.

Although we would normally review a trial court’s decision as to the admission or exclusion of evidence only for an abuse of discretion, “[t]he interpretation of a statute is a question of law, which is reviewed de novo on appeal.” Jenkins v. State, 284 Ga. 642, 645 (2) (670 SE2d 425) (2008) (citation and punctuation omitted).

The relevant facts are not in dispute. The victim was born on April 4, 2000. In late March or early April 2015, the victim told her aunt that Walker, her custodial parent, had molested her at some point in 2011. In August 2015, Walker was indicted for molesting the victim. The statement at issue in this appeal is a forensic interview of the victim by a child advocate recorded on April 2, 2015, two days before the victim’s fifteenth birthday. After the State served Walker with a notice of its intent to introduce the interview into evidence, Walker moved to exclude it.

At the hearing on Walker’s motion in limine, the trial court noted that although OCGA § 24-8-820 now authorizes the admission of child hearsay statements “made by a child younger than 16 years of age,” the legislature expressly provided that the new statute “shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date.” Ga. L. 2013, p. 222, § 21. The same Act also provided that “[a]ny offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense.” Id. On the basis of this language, the trial court concluded that former OCGA § 24-3-16, which authorized the admission of only those hearsay statements made by a child “under the age of 14 years,” rendered this victim’s statement about Walker’s 2011 actions, which was made just before her fifteenth birthday, inadmissible.

Since the trial court issued its ruling, this Court has held that the admissibility of a child hearsay statement as to an act of child molestation occurring before July 1, 2013 is controlled by former OCGA § 24-3-16. Laster v. State, 340 Ga. App. 96, 99 (1), n. 2 (796 SE2d 484) (2017); see also Harris v. State, 340 Ga. App. 865, 873 (3) (798 SE2d 498) (2017) (citing Laster for the proposition that OCGA § 24-8-820 “does not apply” to an offense committed between February 2010 and January 2011). In Laster, we concluded that because the offense at issue in that case occurred “before July 1, 2013,” the case was

governed by OCGA § 24-3-16 (2012), which was in effect at the time [the defendant] committed the offenses. See Ga. L. 2013, pp. 222, 243, § 21 (expressly providing that “[a]ny offense occurring before July 1, 2013, shall be governed by the [Child Hearsay Statute] in effect at the time of such offense”).

Laster, 340 Ga. App. at 99 (1), n. 2.

The State seeks to avoid the conclusion that the former statute applies by arguing that the time of trial should determine the effective date of current OCGA § 24-8-820, and that this rule of evidence, being a procedural one, should apply retroactively. See, e.g., Mason v. Home Depot USA, 283 Ga. 271, 278 (4) (658 SE2d 603) (2008). But arguments as to the retroactive application of a procedural rule may be considered only “if the legislature did not express a contrary intention,” State v. Hill, 321 Ga. App. 679, 680-681 (742 SE2d 497) (2013) (citation and punctuation omitted) — that is, if the legislature did not express its will as to the effective date of the statute at issue. Here, the legislature explicitly provided that OCGA § 24-8-820 “shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date,” while “[a]ny offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense.” Ga. L. 2013, p. 222, § 21. The trial court thus did not err when it concluded that former OCGA § 24-3-16 applies to the offense at issue, which took place at some point in 2011. Laster, 340 Ga. App. at 99 (1), n. 2. We therefore affirm the trial court’s grant of Walker’s motion in limine as to this victim’s statement.

Judgment affirmed.

McFadden, P. J., and Bethel, J., concur.

Decided September 8, 2017.

Timothy G. Vaughn, District Attorney, Lauren C. Shur ling, Assistant District Attorney, for appellant.

Steven M. Harrison, for appellee.

       The current statute provides in full:

        A statemen t made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at the trial, unless the adverse party forfeits or waives such child’s testimony as provided in this title, and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.
      Ga. L. 2013, p. 222, § 13 (emphasis supplied).


text:
    A17A0878.
    CASH et al. v. LG ELECTRONICS, INC. et al.
    (804 SE2d 713)
   MILLER, Presiding Judge.

This case involves a tragic fire at the home of appellant Debbie Cash, which resulted in the death of Cash’s husband and son. Cash and her surviving daughter filed suit against LG Electronics, Inc. alleging, among other claims, strict liability and negligence. Cash claims that the LG television in her living room was the cause of the fire, and in support she submitted the expert testimony of an engineer who attempted to recreate the origin of the fire. Upon LG’s motion, the trial court excluded the expert’s testimony, finding that the expert’s opinion was not based on sufficient facts or reliable principles and methods, as required by Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993). After excluding Cash’s causation expert, the trial court granted summary judgment to LG based on the lack of competent and admissible evidence that there was a defect in the television that caused the fire. This appeal followed, and after a thorough review of the record, we affirm.

The evidence in this case shows that, on the morning of July 6, 2011, Cash’s son woke up and went into the living room to watch television. He then came into Cash’s room and told Cash and her husband that the house was on fire. When Cash looked in the living room, she saw green-black smoke and that the entire entertainment center was on fire. When she and her husband were unable to extinguish the fire, Cash exited the house. Believing that her husband and son had already escaped, Cash went to a window and pulled her daughter out. Once Cash realized her husband and son were trapped in the house, the fire was too extensive for her to rescue them. Mr. Cash died in the house. Firefighters pulled Cash’s son from the house, but he subsequently died at the hospital.

Following an investigation, the Gwinnett County fire department determined that the fire started in the vicinity of the entertainment center, but they were unable to determine the exact origin of the fire. Cash’s expert opined that an internal component in the television’s power supply board failed due to a manufacturing defect or mechanical damage, triggering a chain reaction that caused a fire.

1. Cash argues that the trial court erred in excluding her expert’s testimony because his methods were reliable and his testimony was based on sufficient facts and data. We disagree.

“[W]hether expert testimony ought to be admitted under [OCGA § 24-7-702] is a question committed to the sound discretion of the trial court.” (Citation omitted.) Scapa Dryer Fabrics v. Knight, 299 Ga. 286, 289 (788 SE2d 421) (2016). We will not disturb the trial court’s determination “absent a manifest abuse of discretion.” Mason v. Home Depot U.S.A., 283 Ga. 271, 279 (5) (658 SE2d 603) (2008).

OCGA § 24-7-702 governs the admissibility of expert testimony, and it requires that the trial court act as “gatekeeper to ensure the relevance and reliability of expert testimony” (Citation and punctuation omitted.) Scapa Dryer Fabrics, supra, 299 Ga. at 289. The statute specifically provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.

(Emphasis supplied.) OCGA § 24-7-702 (b).

Importantly,

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 v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.

OCGA § 24-7-702 (f). The trial court has “substantial discretion in deciding how to test an expert’s reliability” (Citation and punctuation omitted.) Butler v. Union Carbide Corp., 310 Ga. App. 21, 26 (1) (712 SE2d 537) (2011). The party seeking to rely on the expert bears the burden of proving the expert is sufficiently reliable. Id.

To admit expert testimony under OCGA § 24-7-702, the trial court must consider: (a) the qualifications of the expert; (b) the reliability of the testimony; and (c) the relevance of the testimony Scapa Dryer Fabrics, supra, 299 Ga. at 289. These are three distinct factors, and courts should be careful not to conflate them. Quiet Technology DC-8 v. Hurel-Dubois UK, 326 F3d 1333, 1341 (II) (A) (11th Cir. 2003). The trial court in this case focused solely on the reliability of the expert’s testing, and accordingly, we do as well.

[Gjenerally, reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training.

(Citations and punctuation omitted.) Old Republic Nat. Title Ins. Co. v. RM Kids, LLC, 337 Ga. App. 638, 647 (4) (788 SE2d 542) (2016). This is not an exhaustive list of factors, and courts may consider them in a “flexible” manner. United Fire & Cas. Co. v. Whirlpool Corp., 704 F3d 1338, 1341 (II) (11th Cir. 2013). The trial court may not exclude an otherwise sufficient expert “simply because it believes that the opinion is not — in its view — particularly strong or persuasive. The weight to be given to admissible expert testimony is a matter for the jury” Seamon v. Remington Arms Co., 813 F3d 983, 990 (III) (A) (2) (11th Cir. 2016).

Importantly, however, a trial court is not permitted to “admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U. S. 136, 146 (III) (118 SCt 512, 139 LE2d 508) (1997); see also HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 644 (1) (697 SE2d 770) (2010). That is precisely the problem with the expert’s methodology in this case.

(a) Sufficient facts and data

Under this prong, we consider the facts on which the expert relied to reach his conclusions. “Although an expert lacks direct evidence of the cause of the fire, the expert may rely upon circumstantial evidence to support his theory.” (Citations and punctuation omitted.) Great Northern Ins. Co. v. Ruiz, 688 FSupp.2d 1362, 1371 (III) (A) (1) (a) (S.D. Ga. 2010).

Here, the expert formulated a hypothesis that the television was the source of the fire, based on the following circumstantial evidence: Cash’s testimony that she saw the fire burning upward from the middle of the entertainment center; the more significant amount of burning in the area of the speaker compared with the remainder of the television; and the destruction of the power board in the television. Based on this evidence, the expert conducted testing to establish the nature of the failure in the television.

(b) Principles and methodology

Cash’s expert opined that the fire was caused by a series of events, beginning with one of two internal components called capacitors located in the power supply board of the television. Specifically, the expert stated that “Capacitor C612” failed due to a manufacturing defect or mechanical damage, and as a result, pressure increased inside Capacitor C612, causing the vented end of the capacitor to extend outward, like “wings,” and make contact with an adjacent component called the heat sink. He contended that this contact created a “rather violent” electrical arc that was sufficient to ignite vapors and/or other materials inside the television. He then opined that the resulting flame burned the gasses as they escaped from Capacitor C612, igniting either a plastic sleeve surrounding the capacitor or a paper component in the power supply board. This ignition then caused flammable materials to drip and engulf components of the speaker located in the bottom right hand corner of the television. This fire, he claimed, eventually ignited the remainder of the plastic base of the television, and spread beyond the television. To prove this hypothesis, the expert designed a protocol to reverse engineer the cause of the fire. Problematically, however, the expert’s methodology required repeated manipulation to achieve his desired results.

Specifically, the expert testified that, to complete the first step of his hypothesis, it was critical to establish that the “wings” from Capacitor C612 made contact with the neighboring heat vent component. At the outset, the expert manipulated the experiment in a way that did not reflect the conditions in existence on the day of the fire because he removed a safety fuse from the television to trigger the venting of Capacitor C612’s wings. However, there was no evidence that the safety fuse was missing from the LG television at issue at the time of the fire. Moreover, in conducting this experiment, he used a different brand of capacitor than the one in the LG television.

Although by industry standards, the capacitor and heat vent are placed at least 3 mm apart, the expert was never able to get the wings to span a distance more than 1.5 mm when conducting his experiments. Because this distance was insufficient for the wings to establish contact with the heat vent on their own, the expert electronically simulated the contact between the two in order to progress to testing the next step of his hypothesis.

After forcing the contact between the capacitor’s wings and the heat sink, the next phase of the expert’s experiment was designed to support his hypothesis that this contact caused a flame which ignited vapors or materials and then ignited plastic or paper inside Capacitor C612. The expert testified that it was critical that this step create a flame. However, the expert was not able to create such a flame merely by forcing contact between these two components. Thus, to progress the experiment to the next phase, the expert had to hold a lighter at the vents to ignite the vapors.

The next step in the expert’s hypothesized chain reaction was that the flame from the vapors would ignite shrink wrap in the capacitor and catch fire, which would ultimately spread to the speaker located near the bottom of the LG television. Again, the expert was required to manipulate the experiment to achieve the desired result of dripping hot plastic because that did not occur on its own. Even when the expert forced the plastic to drip, these drippings did not ignite the cotton ball, which the expert had placed under them to simulate the flammable speaker components.

At every step of the expert’s experiment, the results failed to trigger the next event of his expected chain reaction unless he forced the result he desired and proceeded to the next step. Contrary to Cash’s argument on appeal, the trial court’s rejection of this hypothesis is not a critique of the expert’s results. Instead, it is a finding that the expert employed an unreliable methodology that is inconsistent with the standard under Daubert, supra, 509 U. S. at 595 (II) (C).

Not only did the expert’s methodology include unrealistic manipulation, he also failed to establish that his methodology has been peer-reviewed or used by others, or had otherwise obtained approval in the scientific community. When asked if his methods were generally accepted in the scientific community, the expert averred that he was a member of the scientific community, and he had created the test, and then he boldly claimed that his test “will pass muster.” Yet, he could name only one other person who has approved of it. Moreover, although the expert claimed that his testing was published in an article, he could not name the publication.

In short, the trial court did not abuse its discretion, under these facts, in concluding that the expert’s methodology was unreliable under Daubert.

(c) Application of the methodology to the facts

As discussed above, the expert’s methodology consisted of his repeated manipulation to progress his testing and show that the fire originated in the television. However, there is no evidence that the circumstances the expert created in his experiment existed in the television on the day of the fire. The admission of expert testimony under Daubert is left to the trial court’s sound discretion, and this is sufficient basis for the trial court to reject the expert testimony. See Fireman’s Fund Ins. Co. v. Canon U.S.A., 394 F3d 1054, 1058-1059 (II) (A) (8th Cir. 2005) (testing that was not conducted under the conditions at the time of the fire was not reliable).

Cash argues that the expert’s methodology was sound because investigators agreed that the origin of the fire was in the entertainment system, and the expert used process of elimination to determine that the television was the source. Although process of elimination can be a reliable means of ascertaining the source of a fire, such eliminations must be made through reliable scientific investigation and testing, which the trial court found was not done in this case. See Michigan Millers Mut. Ins. Corp. v. Benfield, 140 F3d 915, 921 (II) (A) (11th Cir. 1998). For the reasons explained above, we find no abuse of discretion in the trial court’s analysis.

Finally, Cash argues that the trial court’s concerns about the expert’s testing go to weight and credibility rather than admissibility. See Seamon, supra, 813 F3d at 990 (III) (A) (2). We do not agree. The issue is not whether the expert’s opinion about the source of the fire is correct, but rather whether the methodology he employed to reach that conclusion is reliable. Where, as here, the analytical gap between the data and the expert’s opinion is too remote, the trial court does not abuse its discretion by excluding the expert’s testimony. Joiner, supra, 522 U. S. at 146 (III).

In summary, the trial court based its decision to exclude the expert testimony here on the unreliability of the expert’s methodology, specifically, the expert’s manipulation of the testing at every step of the process. On these facts, the trial court did not abuse its discretion.

2. Cash next argues that the trial court erred in granting LG’s motion for summary judgment. We disagree.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Campbell v. Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).

In her complaint, Cash alleged breach of express warranty, breach of implied warranty of merchantability, strict liability, and negligence. She also pled claims for unjust enrichment and restitution.

In light of our conclusion in Division 1 that the trial court properly excluded the expert testimony, Cash had no evidence to establish her claims that the television was the cause in fact or source of the fire, and her claims against LG necessarily fail. See Fletcher v. Water Applications Distrib. Group, 333 Ga. App. 693, 696 (773 SE2d 859) (2015), reversed in part on other grounds, Certain Teed Corp. v. Fletcher, 300 Ga. 327 (794 SE2d 641) (2016) (causation is element of negligence claim); Foothills Pharmacies v. Powers, 313 Ga. App. 630, 632 (2) (722 SE2d 331) (2012) (absent evidence of causation, plaintiff could not establish claim for breach of express warranty claim); Boswell v. Overhead Door Corp., 292 Ga. App. 234, 235 (664 SE2d 262) (2008) (plaintiff must prove causation to succeed on strict liability theory); Wilson v. J & L Melton, Inc., 270 Ga. App. 1, 3 (1), n. 1 (c) (606 SE2d 47) (2004) (to prove a claim for breach of implied warranty of merchantability the plaintiff must prove causation). Thus, in the absence of any evidence of causation, the trial court properly granted summary judgment to LG on these claims.

Decided September 8, 2017.

Cathey & Strain, Dennis T. Cathey, David A. Sleppy; Scholle Law, Peter C. Scholle, for appellants.

Mozley, Finlay son & Loggins, Edward C. Bresee, Jr., Arthur J. Park, for appellees.

Finally, Cash’s claims for equitable relief fail. Cash had an adequate remedy at law, Besser v. Rule, 270 Ga. 473, 474 (510 SE2d 530) (1999), and she did not plead unjust enrichment as an alternate theory of recovery based on a failed contract. Thus, her claim for such relief cannot succeed. Wachovia Ins. Svcs. v. Fallon, 299 Ga. App. 440, 449 (6) (682 SE2d 657) (2009).

For the foregoing reasons, the trial court’s order excluding Cash’s expert testimony and the grant of summary judgment to LG are affirmed.

Judgment affirmed.

Doyle and Reese, JJ., concur.

       Defendants LG Electronics, U.S.A., Inc.; Philips Electronics N. A. Corp.; The DirecTV Group, Inc.; SED International, Inc.; Flextronics International, USA; Homesmart; and Wal-Mart Stores, Inc., have been either dismissed from suit or granted summary judgment, and Cash does not challenge those rulings on appeal.

       Fire investigators agree that the origin of the fire was somewhere in the entertainment center, but they did not specifically identify the television.

       Cash contends that the trial court gave too much weight to the expert’s alleged failure to comply with the Georgia Firefighter Standards and Training Examination Preparation and Prerequisites, NFPA 921, a standard that provides methodology for fire investigations. Cash contends that this document is merely a guide and not a legal standard. We note that federal courts have routinely accepted NFPA 921 as an appropriate standard for experts. United Fire & Cas. Co., supra, 704 F3d at 1341 (II) (A). Regardless of whether the expert complied with NFPA 921, however, the trial court did not abuse its discretion in rejecting the expert’s testimony as unreliable for the reasons discussed herein.

       A capacitor is a component that is used to store an electrical charge . It is comprised of one or more pairs of conductors, called “plates,” that are separated by an insulator.

       A heat sink is a component that is designed to absorb and dissipate excess heat.

       There is no evidence that these components were closer than industry standard in the LG television at issue.

       At least one other court has rejected this expert based on a similar methodology. See Whirlpool Corp. v. Camacho, 298 SW3d 631, 642-643 (III) (Tex. 2009).


author: Ellington, Presiding Judge.

text:
    A17A1048.
    MALLERY v. THE STATE.
    (805 SE2d 257)
   Ellington, Presiding Judge.

A DeKalb County jury found Clinton Mallery guilty of armed robbery, OCGA § 16-8-41 (a); and aggravated assault, OCGA § 16-5-21 (a) (2). Mallery appeals from the order denying his motion for a new trial, contending that his trial counsel was ineffective. Finding no reversible error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows the following. The victim, known by her neighbors as “the candy lady,” sold candy, sodas, tobacco, and other sundry items from her DeKalb County apartment. The victim knew Mallery by his street name, “Fly,” was familiar with him from the neighborhood, and had sold him candy and tobacco on several occasions. She had also driven him and his girlfriend to the store once. The victim’s husband also knew Mallery and had tried to help him find a job. The victim’s husband testified that Mallery was aware that he owned a handgun.

Around 6:30 p.m. on July 18, 2012, while the victim’s husband was at work, Mallery knocked at the victim’s apartment door. When the victim opened the door, Mallery asked her for a cigarette. As the victim turned away to get the cigarette, Mallery and an accomplice forced their way inside the apartment. Mallery pointed a handgun at the victim’s head and ordered her to lie down on the floor. The accomplice asked the victim if she had a gun and, when the victim said no, the accomplice said: “She’s lying. Murk that bitch.”

The robbery was briefly interrupted by a knock at the victim’s door. The victim heard a child outside asking to buy something. The accomplice told the victim to say that she was closed, and she complied. When the child left, Mallery struck the victim’s head with his gun, causing her to momentarily lose consciousness. When she awakened, she was lying on her bedroom floor. The accomplice was gone, but Mallery stood in the doorway He shot the victim in the head, causing her to lose consciousness again. Then he shot her four more times, in the neck, chest, abdomen, and hand. Mallery and his accomplice stole the victim’s cash, purse, laptop computer, cell phone, and the victim’s husband’s handgun.

Shortly after Mallery left, the victim regained consciousness and stumbled from her home to her next-door neighbor’s apartment. She knocked on his door and collapsed into his arms when he opened the door. The victim told her neighbor that she had been robbed. The neighbor called 911 and, shortly thereafter, emergency personnel took the victim to the hospital. The neighbor testified that, about six or seven minutes before the victim came over, he had heard two male voices outside the victim’s apartment door and then he heard a loud disturbance.

While the victim was being prepared for surgery, she told the police that “Fly” had shot her, that she knew him and his girlfriend from the neighborhood, and that she had Fly’s girlfriend’s phone number at home. After she had recovered sufficiently from her surgery, the victim gave the police a more detailed account of the robbery and of Fly, describing his height, build, hairstyle, clothing, arm and facial tattoos, and lip piercings. Later, after their investigation had led them to two possible suspects, the police showed the victim two different, photographic arrays, the second of which contained Mallery’s photograph. The victim did not identify anyone from the first array; but, when the police showed her the second array, she immediately pointed to Mallery’s photograph. Mallery was later arrested in Mississippi on a fugitive warrant. The victim also identified Mallery at trial as the man who had robbed and shot her.

Mallery testified in his own defense, contending that the victim had been involved in a fraudulent scheme to sell iPhones purchased under stolen identities and that she had intentionally misidentified him as the shooter to protect herself from the more dangerous person who had actually shot her.

Mallery contends that the trial court erred in denying his motion for a new trial. He argues that his trial counsel’s performance was deficient in four respects and that, given the cumulative and prejudicial effect of those deficiencies, he is entitled to a new trial on ineffective assistance of counsel grounds.

To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was professionally deficient and that, but for such deficient performance, there is a reasonable probability that the result of the trial would have been different. See Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

When assessing prejudice, a court must consider the totality of the evidence before the judge or jury. A verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Moreover, in weighing prejudice, [a defendant] is entitled to relief if any one error of trial counsel shows that there is a reasonable probability that the outcome of the trial would have been more favorable to him or if the collective prejudice from all of trial counsel’s deficiencies meets that standard.

(Citations and punctuation omitted.) Daughtry v. State, 296 Ga. 849, 853 (2) (770 SE2d 862) (2015).

“If the defendant fails to satisfy either prong of the Strickland test, this Court is not required to examine the other.” (Citation omitted.) Propst v. State, 299 Ga. 557, 565 (3) (788 SE2d 484) (2016). “In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012). With these principles in mind, we review Mallery’s claims of ineffective assistance of counsel.

(a) Mallery contends that his trial counsel should have impeached the victim with her criminal history. He argues that evidence of the victim’s crimes would have bolstered his defense that, because the victim was a criminal who associated with criminals, there were others besides him who would have been motivated to rob and shoot her.

It is undisputed that the victim had been convicted of several crimes in South Carolina, including 2002, 2005, and 2011 misdemeanor convictions for writing fraudulent checks and a 2004 felony conviction for financial transaction card theft. The victim also had a 2009 federal conviction for “aggravated ID fraud.” Defense counsel did not obtain the victim’s out-of-state criminal history prior to trial as she had mistakenly relied on the district attorney’s office to provide it to her.

Pretermitting whether counsel’s performance was deficient in this respect, we find no error in the trial court’s conclusion that counsel’s failure to impeach the victim with her prior criminal record did not prejudice the defense. Mallery’s initial defense was that his nickname was not “Fly,” and that the victim had simply misidentified him. However, after Mallery admitted that his nickname was “Fly,” counsel had to revise the defense theory Mallery then contended that the victim was involved in criminal activity and that she had intentionally misidentified him as the shooter to avoid the wrath of the people who actually shot her.

While impeaching the victim with evidence of her prior crimes may have undermined her credibility, the prior crimes do not in and of themselves suggest a motive for why the victim would intentionally misidentify Mallery or anyone else as her shooter. Mallery attempted to provide that motive through his testimony He testified that the victim had engaged him and others in a fraudulent scheme to purchase iPhones using other people’s personal information—including Mallery’s and his girlfriend’s — but that she did not follow through on the deal. In short, Mallery said that she had “scammed” him and that he was upset about that. The problems with Mallery’s defense are that it is highly speculative, it does not identify any other person who may have wished the victim harm and, by painting the victim as a criminal who scammed him, it gives Mallery an additional motive for shooting the victim. Moreover, Mallery opened himself up to cross-examination on a prior inconsistent statement that he had given the police when he was arrested, a statement in which he said that he had no quarrel with the victim. Given Mallery’s testimony concerning the victim’s scams and the overwhelming evidence of Mallery’s guilt, the trial court was authorized to find that there existed no reasonable probability that the outcome of the trial would have been different had counsel obtained and used the victim’s criminal history to impeach her. See Daughtry v. State, 296 Ga. at 861 (2) (i) (counsel’s failure to investigate a witness’s criminal history and to impeach him with it did not prejudice the defense given the overwhelming evidence of the defendant’s guilt and the fact that others had testified as to the victim’s criminal history).

(b) Mallery contends that his trial counsel failed to properly limit the introduction of evidence of his criminal history

The record does not show that any witness testified about Mallery’s prior criminal history In fact, defense counsel successfully argued against the admission of prior, similar crimes evidence. Rather, a few witnesses, including Mallery, testified that Mallery had been arrested in Mississippi in connection with the instant crimes. It is well settled that there is no inherent prejudice associated with the fact that the defendant has been in jail in connection with the case for which he is being tried. See Bright v. State, 292 Ga. 273, 275 (2) (a) (736 SE2d 380) (2013) (“We have previously held that evidence that an accused has been confined in jail in connection with the case at issue does not place his character in evidence.”) (citations and punctuation omitted).

Trial counsel also briefly referenced a prior arrest while cross-examining a detective concerning a photo that the detective had used in his photographic lineup. That photo was taken following Mallery’s arrest in 2008. Counsel’s purpose in identifying the 2008 booking photo was to contrast it with Mallery’s 2012 booking photo, highlighting the differences in Mallery’s appearance and pointing out that the victim’s description of the shooter coincided with Mallery’s 2008 appearance, not his 2012 appearance. Although this line of questioning revealed a prior arrest, it also had the strategic purpose of creating doubt about the victim’s identification of Mallery.

“[Djecisions about what questions to ask on cross-examination are quintessential trial strategy and will rarely constitute ineffective assistance of counsel. In particular, whether to impeach prosecution witnesses and how to do so are tactical decisions.” (Citations and punctuation omitted.) Henry v. State, 297 Ga. 74, 77 (2) (c) (772 SE2d 678) (2015). Given that counsel was attempting to undermine the victim’s identification of Mallery, we cannot say that the strategy of comparing booking photographs was patently unreasonable. See McNair v. State, 296 Ga. 181, 184 (2) (b) (766 SE2d 45) (2014) (“Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.”) (citation and punctuation omitted).

(c) Mallery argues that his trial attorney was ineffective because she failed to investigate and to call witnesses that advanced the theory that the victim intentionally misidentified him.

Contrary to Mallery’s assertion, the record shows that counsel employed an investigator who searched for witnesses to support Mallery’s defense that some other person shot the victim. A year-long effort to track down possible suspects proved fruitless, however. Counsel testified that her investigator could not find the apartment complex security guards who gave statements about having seen a car leaving the complex shortly after the shooting. Even if, as Mallery asserts, counsel had been able to locate the car and prove that it was not Mallery’s, that would not exclude the possibility that the car was his accomplice’s. Moreover, Mallery’s alibi witness, his girlfriend, had abandoned him and was not going to be a favorable witness. Even Mallery’s mother had nothing of evidentiary value to offer.

Given the record before us, Mallery has not shown that counsel’s investigatory efforts were deficient or that other witnesses would have provided helpful testimony “Without a proffer of evidence that would have been admissible and favorable to his case, [Mallery] has failed to demonstrate a reasonable probability that the testimony of these witnesses would have affected the outcome at trial.” Thomas v. State, 282 Ga. 894, 896 (2) (a) (655 SE2d 599) (2008).

(d) Mallery argues that counsel’s performance was deficient in that she failed to rehabilitate him with his prior consistent statement after the prosecution had impeached him with his inconsistent statement.

During the State’s cross-examination, Mallery testified that he had been “scammed” by the victim, and that he was “upset” about it. The State then impeached Mallery with his statement that there was no “bad blood” between him and the victim. Mallery argues that his counsel should have then rehabilitated him with his prior consistent statement. Mallery, however, has not identified the prior consistent statement or explained how it would have been helpful. Moreover, counsel testified that she was reluctant to bring the statement (which had been previously excluded) into evidence because Mallery’s story had changed over time and, therefore, “would be more damaging. [She] did not want him to come across as a liar; that he was lying to the police in the original statement.”

Defense counsel’s decision not to rehabilitate Mallery with evidence that might further erode his credibility is certainly a reasonable trial strategy “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Brown v. State, 321 Ga. App. 765, 767 (1) (743 SE2d 452) (2013).

Decided September 8, 2017.

Ruth R. McMullin, for appellant.

Sherry Boston, District Attorney, Gerald Mason, Assistant District Attorney, for appellee.

For these reasons, we conclude that Mallery has failed to carry his burden of proving that the trial court erred in denying his motion for a new trial on ineffective assistance of counsel grounds.

Judgment affirmed.

Andrews and Rickman, JJ., concur.

        Jackson v. Virginia. 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       The parties do not cite to, nor have we found in the record, copies of the State’s NCIC or GCIC reports documenting the victim’s criminal history, nor does the record contain certified copies of those convictions.


author: Reese, Judge.

text:
    A17A1294.
    AUTOZONE, INC. et al. v. MESA.
    (804 SE2d 734)
   Reese, Judge.

The Appellant, AutoZone, Inc., seeks review of a judgment of the Superior Court of Columbia County that reversed a ruling of the State Board of Workers’ Compensation (“Board”), which denied certain benefits to the Appellee, Eulalia Mesa. The Appellant contends that the superior court misapplied the “any evidence” standard when reviewing the Board’s ruling and erred in finding that the Administrative Law Judge (“ALJ”), who initially denied the Appellee’s claim, acted “contrary to law.” For the reasons set forth infra, we reverse.

Viewed in the light most favorable to the Appellant, as the party who prevailed before the Board, the record reveals the following, undisputed facts. In November 2010, while the Appellee was working for the Appellant as a clerk and delivery driver, the truck the Appellee was driving was “rear-ended” by another car, and the accident injured her back and neck. She was treated in an emergency room, followed by outpatient treatment, during which several physicians diagnosed her with neck and lower back pain. Shortly after the accident, the Appellee returned to fully paid, full-time work for the Appellant in a light-duty status, performing only clerical duties because her medication made her too dizzy to drive a delivery truck. In January 2011, a treating physician cleared her to drive the delivery truck, and she resumed her delivery duties for the Appellant.

The Appellee continued to receive physical therapy for lower back pain and, in February 2011, received a lumbar magnetic resonance imaging (“MRI”) scan. After reviewing the lumbar scan, one of the Appellee’s physicians, Dr. John Rumbaugh, opined that the scan was “normal.” In June 2011, the Appellee was referred to Dr. Allen Goodrich, who determined that her lumbar MRI scan showed a “completely normal disk and spinal canal,” opined that she had reached her maximum medical improvement, and released her to full work duties. Dr. Goodrich’s records from August 2011 stated that, in his opinion, the Appellee had no conditions that required surgical intervention.

In September 2011, the Appellee underwent another lumbar MRI scan. Dr. Amar Rajadhyaksha opined that the scan showed no gross disc herniations, spinal stenosis, or nerve root impingement, nor did it indicate any conditions that could be actively treated. His physical examination of the Appellee showed no focal sacroiliac joint tenderness, and the results of his clinical tests were negative. Based on these findings, he placed the Appellee at maximum medical improvement with no work restrictions and issued a zero percent impairment rating.

The same month, the Appellee was evaluated by a physical therapist, who opined that, in order to address the Appellee’s lower back pain, she needed “skilled rehabilitative therapy in conjunction with a home exercise program,” with visits to the therapist three times a week for four weeks. According to the therapist, the Appellee’s “[ojverall rehabilitation potential is good.” Despite the recommended frequency of visits, however, the record does not show that the Appellee attended more than one other physical therapy session, which was conducted a week after the first.

In October 2011, the Appellee saw Dr. Tamar Ference, who ordered MRIs and x-rays of the Appellee’s cervical and lumbar spine. The Appellee’s cervical spine MRI showed “no significant abnormality.” Dr. Ference recommended that the Appellee get physical therapy and that she not work until her condition improved.

In January 2012, the Appellee was examined by Dr. Jonathan Hyde, who ordered a lateral lumbosacral x-ray that, upon review, he considered to be “normal.” He also reviewed two separate MRIs performed in 2011 by prior physicians and found no disc herniations or significant desiccation. Dr. Hyde recommended an electromyo-gram (“EMG”) with nerve conduction study, the results of which were determined to be “unremarkable.” Dr. Hyde also performed a diagnostic right sacroiliac joint injection using fluoroscopy, and the Appel-lee reported that the procedure provided one to two days of significant pain relief. Dr. Hyde opined that the injection was diagnostically positive for sacroiliac dysfunctional pain. Dr. Hyde recommended a surgical fusion of the Appellee’s right sacroiliac joint, also known as arthrodesis, and classified her as “off work status.” The Appellee declined to undergo the surgery and continued to work for the Appellant until March 2012, when she stopped working, reportedly due to back pain. Dr. Hyde then restricted the Appellee to light-duty work, and she received total temporary disability benefits until April 2012.

The Appellee had three appointments with Dr. Hyde over the next two and a half years to address her complaints of ongoing back pain. Following the Appellee’s visit in May 2012, Dr. Hyde noted that “[tjhis patient is fully capable of working within the restrictions given. There is no change in restrictions. The only question is, does she want to go back to work?” During the Appellee’s visit in September 2013, Dr. Hyde ordered a lateral lumbosacral x-ray, and he concluded that the image showed no changes from previous images of the same area that were considered “normal.” During an appointment with the Appellee over a year later, in December 2014, Dr. Hyde did not conduct any additional tests, although he again noted that the Appellee’s lumbar MRIs from 2011 were “normal.” However, he recommended a surgical sacroiliac joint fusion to address her right-side sacroiliac dysfunction pain. The Appellee decided to have the surgery and sought approval for it under workers’ compensation.

In April 2015, the Appellant sent the Appellee for an independent medical evaluation (“IME”) with Dr. Peter Millheiser, who performed a physical examination of the Appellee and reviewed her medical records from other treating physicians, including Dr. Hyde, as well as all of the x-rays, MRIs, and test results. Dr. Millheiser diagnosed the Appellee with a right sacroiliac joint sprain, a cervical sprain, and a lumbar sprain. Still, he found no evidence of sacroiliac dysfunction or permanent impairment. He opined that the Appellee was able to do regular daily activities and regular work without restrictions, and concluded that she was at an “endpoint” in treatment. The Appellee had no other medical appointments or treatment related to her work injury after her examination by Dr. Millheiser in April 2015.

In addition to these facts, it is undisputed that, although the Appellee was unemployed for two years after leaving her job with the Appellant in March 2012, she became a nanny for a family with a six-year-old boy in March 2014, working six to seven hours per day, five days per week caring for the boy and performing household chores. It follows that the Appellee was employed as a full-time nanny at the time she saw Dr. Hyde in December 2014 and Dr. Millheiser in April 2015 and was still employed there in April 2016, after she filed the instant workers’ compensation claim.

The Appellant denied responsibility for the Appellee’s sacroiliac joint fusion surgery, and the parties agreed to have the ALJ resolve the matter on the submission of briefs and documentary evidence alone, without a hearing, as the only issue to be decided by the ALJ was whether the sacroiliac joint fusion surgery was reasonable and necessary. After reviewing the evidence and the briefs, the ALJ denied the Appellee’s request for benefits, finding that the surgery was not reasonable or necessary. The ALJ based his finding “particularly” on Dr. Millheiser’s opinion that the Appellee had no sacroiliac joint dysfunction as of April 2015. The ALJ explained that he was not persuaded by Dr. Hyde’s opinion because Dr. Millheiser’s April 2015 opinion was supported by numerous earlier medical opinions finding no joint dysfunction.

The Appellee appealed to the Board, which adopted the ALJ’s decision, finding that the ALJ was in the best position to determine the credibility and weight of evidence in the record. The Board adopted the ALJ’s findings of fact on the basis they were supported by a preponderance of competent and credible evidence and stated that the ALJ appropriately applied the law to those findings.

The Appellee sought review in the superior court, which set aside the Board’s decision and ruled in favor of the Appellee. The court stated that it conducted only a limited review of the factual findings of the ALJ and Board, acknowledging that those facts were conclusive and binding upon the court if they were supported by any evidence, and the court was not authorized to substitute itself as a factfinding body Even so, the court found that the record contained “no objective medical evidence” that the proposed surgery was not “reasonably required and calculated to effect a cure, give relief, or restore the [Appellee] to suitable employment.” The court explained that Dr. Hyde based his diagnosis and recommendation for surgery on the results of a diagnostic sacroiliac joint injection, unlike Dr. Millheiser, who performed no “medical testing of any kind” on the Appellee but, instead, relied upon his physical examination of the Appellee and his review of her medical records and test results. The court also found that the decision of the ALJ and the Board was contrary to law because OCGA § 34-9-200 (a) requires an employer to provide benefits for treatment to injured workers that is prescribed by a licensed physician in order to provide relief for work-related injuries. The court expressed its concern that the Board relied on the strength of Dr. Millheiser’s opinion in relieving the Appellant of its “obligation to furnish medical treatment prescribed by the [Appellee’s] authorized treating physician.” Consequently, the court set aside the Board’s decision and remanded the case “for further review in keeping with the findings of this Court.” This appeal followed.

In reviewing an award of workers’ compensation benefits, both the superior court and this Court are required to construe the evidence in a light most favorable to the party prevailing before the State Board. It is axiomatic that the findings of the Board, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this Court has any authority to substitute itself as a fact finding body in lieu of the Board.

“The question of whether the trial court applied the correct legal standard in evaluating the evidence, however, is one of law, which we review de novo.” With these guiding principles in mind, we turn now to the Appellant’s specific claims of error.

In two related enumerated errors, the Appellant contends that the trial court misapplied the “any evidence” standard of review to the conclusion by the ALJ and Board that the joint fusion surgery was not reasonable or medically necessary According to the Appellant, the court improperly construed the “any evidence” standard so that it was only required to consider medical opinions if they were supported by “objective medical evidence.” Further, the Appellant argues that the court erred in finding that the award of the ALJ and the Board was “contrary to law” on the basis that the ALJ assigned greater weight to Dr. Millheiser’s opinion than to Dr. Hyde’s opinion. The Appellant contends that the court’s order shows that it impermissibly substituted its own judgment for that of the ALJ as to the weight to be assigned to the conflicting opinions of Dr. Hyde and Dr. Millheiser.

It is axiomatic that, when a Board’s decision is appealed to the superior court, the Board’s decision is deemed conclusive and may not be set aside unless the court finds that there was insufficient competent evidence to support the decision, the decision is contrary to law, or another specific statutory basis exists. In making this determination, the court is not authorized to disregard competent evidence that it believes is not credible, reweigh the evidence, or resolve conflicting evidence, as these powers are reserved solely for the ALJ and the Board.

In this case, there was substantial competent evidence to support the conclusion of the ALJ and the Board that the joint fusion surgery was not reasonable or medically necessary As shown above, it is undisputed that all of the Appellee’s x-rays, MRI scans, and nerve conduction tests were deemed “normal” and/or “unremarkable.” Moreover, several physicians who examined the Appellee over the years, in addition to Dr. Millheiser, found no pathology or other condition that required joint fusion surgery. Thus, the superior court was not authorized to reverse the ruling of the ALJ and the Board based upon a lack of supporting competent evidence.

Further, while Dr. Millheiser did not conduct any “objective” medical tests on the Appellee, it is undisputed that he examined her and reviewed all of her medical records and test results, including the results of the diagnostic injection that Dr. Hyde apparently relied upon exclusively in making his diagnosis and recommendation for surgery. Thus, both physicians relied upon the same results of “objective” medical tests in reaching their opinions. It appears that they simply disagreed as to whether the results of the diagnostic injection demonstrated the need for the recommended surgery. As stated above, it was for the ALJ and the Board to determine which opinion was more credible and resolve this conflict, not the superior court.

Decided September 8, 2017.

McAngus Goudelock & Courie, T. Evan Beauchamp, for appellants.

Paul V. Balducci, for appellee.

Consequently, we conclude that the superior court exceeded its authority when it substituted itself as the factfinder in lieu of the ALJ and the Board and assigned less credibility and weight to Dr. Mill-heiser’s opinion simply because the physician had not conducted additional “objective” medical tests on the Appellee before reaching a diagnosis. Because the court’s order was based upon an impermissible resolution of a conflict in the evidence, it erred in reversing the decision of the Board.

Judgment reversed.

Miller, P. J., and Doyle, J., concur.

       This Court granted the Appellant’s application for discretionary review.

       See YKK (USA) v. Patterson, 287 Ga. App. 537 (652 SE2d 187) (2007).

       The parties in this case waived an evidentiary hearing before the ALJ and agreed that the ALJ would base its ruling on the parties’ briefs, their joint stipulations to many of the relevant facts, and the Appellee’s medical records. These facts are drawn from the stipulations and medical records.

       See OCGA § 34-9-103 (a) (If a ruling by the ALJ is appealed to the Board, the ALJ’s findings of fact “shall be accepted by the [Board] where such findings are supported by a preponderance of competent and credible evidence contained within the records.”).

       See OCGA § 34-9-105 (b).

       OCGA § 34-9-200 (a) (1) provides, in relevant part, as follows:
      For all injuries occurring on or before June 30, 2013, . . . the employer shall furnish the employee entitled to benefits under this chapter such medical, surgical, and hospital care and other treatment, items, and services which are prescribed by a licensed physician, . . . which in the judgment of the State Board of Workers’ Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.

        YKK (USA), 287 Ga.App. at 537 (citations and punctuation omitted). See OCGA § 34-9-105 (c) (4), (5) (The Board’s findings shall be conclusive upon the superior court unless, inter alia, there is not sufficient competent evidence to warrant the Board’s decision or the Board acted contrary to law.).

        Harris v. Peach County Bd. of Commrs., 296 Ga. App. 225, 225-226 (674 SE2d 36) (2009) (citation and punctuation omitted).

       See OCGA § 34-9-105 (c) (4), (5); see also OCGA § 34-9-105 (d) (“No decision of the board shall be set aside by the court upon any grounds other than one or more of the grounds stated in subsection (c) of this Code section.”).

       See YKK(USA), 287 Ga. App. at 539 (2) (“It is well established that an award of the Board will not be disturbed where there is any evidence to support it. It is within the province of the Board to determine the weight and credit to be given to the testimony of the witnesses, including the opinion testimony of physician witnesses, and to resolve issues of fact arising from conflicts in the evidence. Furthermore, it is well settled that opinions of medical experts are advisory only and may be accepted or rejected by the [BJoard.”) (citations and punctuation omitted); see also Bibb County Bd. of Ed. v. Bembry, 286 Ga. App. 878, 879-880 (650 SE2d 427) (2007) (It is within the province of the Board to resolve issues of fact arising from contradictory opinions of physician witnesses.).

       See YKK (USA), 287 Ga. App. at 539 (2); Bibb County Bd. of Ed., 286 Ga. App. at 881.

       See YKK (USA), 287 Ga. App. at 539 (2).

       See Hughston Orthopedic Hosp. v. Wilson, 306 Ga. App. 893, 897 (1) (703 SE2d 17) (2010); Bibb County Bd. of Ed., 286 Ga. App. at 881.

       See OCGA § 34-9-105 (c), (d); see also YKK (USA), 287 Ga. App. at 539-540 (2).