text:
    A17A0335.
    UNITED HEALTH SERVICES OF GEORGIA, INC. et al. v. ALEXANDER et al.
    (802 SE2d 314)
   McFADDEN, Presiding Judge.

The issue in this appeal is whether the trial court erred in denying a motion to enforce an arbitration agreement. Because the appellants, as the parties seeking arbitration, failed to carry their burden of proving a valid and enforceable arbitration agreement, we affirm.

1. Facts and procedural posture.

On June 12,2013, Doris Alexander was admitted to PruittHealth-Forsyth nursing home, formerly known as Heritage Healthcare of Forsyth. On or about that same date, Carol Alexander, Doris Alexander’s daughter, signed a nursing home admission agreement and other documents, including an optional arbitration agreement naming her mother and the nursing home as parties. The arbitration agreement provided that it was voluntary and not a precondition to admission to the nursing home, that the parties waived the right to a jury trial and instead agreed to have any future disputes between them resolved by binding arbitration, that an arbitration decision would be final and unappealable, that the agreement was governed by the Federal Arbitration Act and not by the Georgia Arbitration Act, and that the patient/resident could revoke the agreement within 30 days of signing it. Carol Alexander signed the agreement on the line designated for the signature of the patient/resident. Doris Alexander was not present when her daughter signed the arbitration agreement, Carol Alexander never showed or discussed the arbitration agreement with her mother, and Doris Alexander never signed the agreement herself.

Doris Alexander remained a resident of the nursing home until she died on February 27, 2014. On May 5, 2015, Jeanette Alexander, another of Doris Alexander’s children and administrator of her estate, filed a lawsuit against United Health Services of Georgia, Inc., and other defendants, asserting multiple causes of action, including claims for negligence, wrongful death, and medical malpractice. Based on the arbitration agreement, United Health and other defendants filed a motion to dismiss or, alternatively, to stay proceedings and compel arbitration. After a hearing, the trial court denied the motion, finding that there was no valid and enforceable arbitration agreement because Carol Alexander did not have the authority to sign the arbitration agreement on her mother’s behalf. The defendants’ application for interlocutory appeal was granted, and this appeal followed.

2. Enforceability of the arbitration agreement.

“Arbitration is a matter of contract, meaning that arbitrators derive their authority to resolve disputes only from the parties’ agreement.” Brooks Peanut Co. v. Great Southern Peanut, 322 Ga. App. 801, 809 (3) (746 SE2d 272) (2013) (citation and punctuation omitted).

Whether a valid and enforceable arbitration agreement exists is a question of law for the court. We therefore review a trial court’s order granting or denying a motion to compel arbitration de novo. The [appellants], as the parties seeking arbitration, bear the burden of proving the existence of a valid and enforceable agreement to arbitrate. And the validity of an arbitration agreement is generally governed by state law principles of contract formation.

McKean v. GGNSC Atlanta, 329 Ga. App. 507, 509 (1) (765 SE2d 681) (2014) (citations and punctuation omitted). Under Georgia law, to constitute a valid contract, there must be, among other things, “the assent of the parties to the terms of the contract.” OCGA § 13-3-1. “Thus, a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Brooks Peanut Co., supra (citation and punctuation omitted). See also TranSouth Financial Corp. v. Rooks, 269 Ga.App. 321, 324 (1) (604 SE2d 562) (2004) (party seeking to enforce arbitration agreement must prove assent to the contractual terms).

In the instant case, Doris Alexander did not personally assent to the arbitration agreement. United Health and the other appellants argue, however, that Carol Alexander had both express and implied authority to act as her mother’s agent and sign the agreement on her mother’s behalf. Indeed, “[tjraditional principles of agency law may bind a nonsignatory to an arbitration agreement.” Triad Health Mgmt. of Ga., III v. Johnson, 298 Ga. App. 204, 206 (2) (679 SE2d 785) (2009) (citation and punctuation omitted). Under such traditional principles of agency law, “[t]he relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” OCGA § 10-6-1. But contrary to the appellants’claims, Carol Alexander did not have express or implied authority to sign the arbitration agreement on her mother’s behalf.

(a) Express authority.

It is undisputed that Doris Alexander did not execute a power of attorney or any other written document expressly authorizing her daughter Carol Alexander to sign the arbitration agreement or otherwise act for her. See Life Care Centers of America v. Smith, 298 Ga. App. 739, 743-744 (1) (681 SE2d 182) (2009) (arbitration agreement signed by nursing home resident’s daughter was unenforceable where daughter had no general power of attorney but only a power of attorney for health care decisions). Compare Triad Health Mgmt., supra at 207-208 (2) (arbitration agreement signed by son for father was enforceable where a general power of attorney expressly gave the son full power and authority to act on behalf of father). Nevertheless, the appellants contend that a written agency agreement was not required, and because the daughter had previously signed certain medical documents for her mother, who had not objected, such conduct amounted to the mother expressly granting her daughter general authority to act as her agent without limitation. We disagree.

It is true that “a contract of agency signed by both parties is not essential to the creation of the principal-agent relationship. Existence of an agency may be established by proof of circumstances, apparent relations, and conduct of the parties.” Clyde Chester Realty Co. v. Stansell, 151 Ga. App. 357, 358 (1) (A) (259 SE2d 639) (1979) (citations and punctuation omitted). However, the conduct of the parties here does not establish that Doris Alexander expressly granted Carol Alexander the general authority to act as her agent without limitation. While Carol Alexander deposed that her mother had not objected when she previously signed documents, Carol Alexander further explained that her mother did not know about the specific paperwork that she was signing and that they had never actually discussed the daughter making decisions for her mother. With regard to the nursing home documents, including the arbitration agreement, Carol Alexander testified that her mother never provided her express permission to sign any of those documents. Moreover, Gloria Hammond, who had signed the arbitration agreement for the nursing home as its own authorized agent and who had presented the agreement to Carol Alexander for her signature, testified that she knew that Carol Alexander did not have a power of attorney to act for Doris Alexander and that there was no evidence that Doris Alexander had expressly authorized her daughter to sign the agreement. Under these circumstances, while the prior conduct of Doris Alexander may have authorized Carol Alexander to sign certain medical forms for her, “there is no evidence that [Doris Alexander], prior to or at her admission to the nursing home, gave [her daughter] express authority to enter into the [arbitration] agreement on her behalf.” McKean, supra at 509 (1) (a). See also Ashburn Health Care Center v. Poole, 286 Ga. App. 24, 26-27 (648 SE2d 430) (2007) (where no power of attorney, nursing home failed to establish that husband had actual authority to sign arbitration agreement on behalf of his wife upon her admission to nursing home); Hogsett v. Parkwood Nursing & Rehab. Center, 997 FSupp.2d 1318, 1324 (I) (B) (2) (N.D. Ga. 2014) (holding that daughter had no express authority to sign arbitration agreement for mother where no power of attorney and daughter did not discuss signing the agreement with her mother).

(b) Implied authority.

We note that “Georgia courts have used the terms ‘apparent’ and ‘implied’ authority interchangeably” McKean, supra at 510 (1) (a) n. 4.

[A]pparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.

Id. at 510 (1) (a) (citation and punctuation omitted; emphasis in original). Here, the appellants have not presented any evidence of words or conduct of Doris Alexander that could have caused the nursing home to believe that she consented to having the arbitration agreement signed on her behalf by her daughter. Rather, the appellants rely on evidence that Hammond, the nursing home employee, had seen prior medical documents signed by Carol Alexander for her mother and that Hammond took the signing of those documents into consideration in deciding to allow Carol Alexander to sign the arbitration agreement. However, Carol Alexander’s “own action of signing [documents for her mother] is insufficient to create agency[.] Any manifestations of implied agency or apparent authority arising only through the words or acts of the purported agent are insufficient to authorize a finding that an agency existed.” Id. (citation and punctuation omitted). Thus, “[a]n agency finding cannot be based upon the assumption that an agency relationship exists or upon an inference drawn from the alleged agent’s actions.” Ashburn Health Care Center, supra at 26. Accordingly, the arbitration agreement is not enforceable, and the trial court properly denied the motion to compel arbitration. Id. at 27.

3. Foreign law.

The appellants argue that the Alabama Supreme Court, in Kindred Nursing Centers East v. Jones, 201 S3d 1146 (2016), enforced an arbitration agreement in similar circumstances and that we should likewise find that the agreement in this case is enforceable. While decisions of foreign courts may be instructive, they are not binding on this court. Southern R. Co. v. Malone Freight Lines, 174 Ga. App. 405, 408 (1) (330 SE2d 371) (1985). Given the controlling Georgia law cited above, we need not rely on authority from another state to resolve this case.

The appellants also argue that the arbitration agreement in this case should be enforced because federal policy favors arbitration.

As the Eleventh Circuit Court of Appeals stated in Dasher v. RBC Bank (USA), 745 F3d 1111, 1116 (II) (B), n. 5 (11th Cir. Fla. 2014), the federal policy favoring arbitration is taken into consideration even in applying ordinary [s]tate law. The federal policy favoring arbitration is not, however, the same as applying a presumption of arbitrability. We only apply the presumption of arbitrability to the interpretation of contracts if we have already determined that, under [s]tate law, the parties formed a valid agreement to arbitrate.

Bickerstaff v. SunTrust Bank, 332 Ga. App. 121, 128-129 (2) (a) (770 SE2d 903) (2015), reversed on other grounds, 299 Ga. 459 (788 SE2d 787) (2016) (punctuation omitted). “[T]he federal policy is simply to ensure the enforceability, according to their terms, of private agreements to arbitrate.” Green Tree Servicing v. Jones, 333 Ga. App. 184, 185 (1) (775 SE2d 714) (2015) (citation and punctuation omitted). “Accordingly, the first task of a court asked to compel arbitration of a dispute is to determine whether the parties agreed to arbitrate that dispute.” Primerica Financial Svcs. v. Wise, 217 Ga. App. 36, 40 (5) (456 SE2d 631) (1995) (citation and punctuation omitted; emphasis in original). Here, because no valid and enforceable agreement to arbitrate was formed, the federal policy in favor of arbitration does not control.

Decided June 22, 2017

Arnall Golden Gregory, Jason E. Bring, J. Ryan Hood, Sean T. Sullivan, for appellants.

McHugh Fuller Law Group, James B. McHugh, Michael J. Fuller, Jr., D. Bryant Chaffin, A. Lance Reins, for appellees.

Judgment affirmed.

Branch and Bethel, JJ., concur.


source: Caselaw Access Project

author: Doyle, Chief Judge.

license: Public Domain

text:
    A17A0389.
    SWANSON TOWING & RECOVERY, LLC et al. v. WRECKER 1, INC. et al.
    (802 SE2d 300)
   Doyle, Chief Judge.

Wrecker 1, Inc., and its owner, Stacy Richardson (collectively, the “plaintiffs”), sued Swanson Towing & Recovery, LLC; Nick Group, LLC; Sarah Cha; and Amanda McCallister (collectively, the “defendants”) for tortious interference with business relations, libel, and slander. The defendants moved for summary judgment, and the trial court denied the motion, certifying its ruling for immediate review. This Court granted the defendants’ application for interlocutory review, and this appeal followed. Because the defendants were entitled to judgment as a matter of law, we reverse the trial court’s denial of their summary judgment motion.

“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.”

So viewed, the relevant facts show that for several years, Steve Richardson operated a towing company called Silent Night Recovery and Transport, Inc., the sole business of which was non-consensual towing. In 2007, pursuant to a consent agreement with Silent Night, the Public Service Commission (the “PSC”) revoked Silent Night’s permit to conduct non-consensual towing, imposed a fine against Silent Night, and ordered it to pay restitution to consumers. In a press release, the PSC noted that “Silent Night had violated state law and Commission rules, including providing false business addresses, improper signage, failing to file proof of proper insurance with the Commission!)] and exceeding the maximum rate tariff approved by the Commission.”

Around the same time, in January 2007, Steve’s wife, Stacy Richardson, incorporated her own towing company, Wrecker 1. Steve worked for Wrecker 1, advised Stacy with respect to the business, and advocated for the company with government entities including the PSC. Initially, Wrecker 1 only provided consensual towing services — towing requested by the vehicle’s owner. In 2009, however, Stacy, with assistance from Steve, sought to be added to Henry County’s list of approved towing services for non-consensual tows requested by public officials. In May 2011, Wrecker 1 was added to the County’s approved list. At that time, only two other companies were on the list, one of which was Swanson.

According to the defendants, the addition of Wrecker 1 to the County list of approved wreckers was financially devastating. Both Sarah Cha, the owner of Swanson, and Amanda McCallister, a long-term employee of the company, sent correspondence to the County manager and various County commissioners to complain about the financial hardship. Several of the messages also conveyed complaints received about Wrecker l’s business integrity and billing habits. In one, McCallister wrote “I don[’]t see how Wrecker 1 can even call themselves an upstanding company.” In another, she wrote that Wrecker 1

has no morals [and] no regard for the Citizens of Henry County. . . . [Wrecker 1] used to be under the name “Silent Knight [sic] Towing and got in HOT water with the [PSC] ... so they changed their name to Wrecker 1. . . . [Wrecker 1] continue[s] to overcharge on 95% of [their] calls. . . . We would think that the people [and] officials of Henry County would want valuable wrecker services dealing with their citizens . . . not a mean, vulgar, demeaning[ ] crook like Steve [and] Stacy Richardson of Wrecker 1.

Cha also sent letters stating that Wrecker 1 and Silent Night were the same company.

At some point, Swanson heard from a GEICO insurance adjuster, Summer Smith, regarding complaints of overcharging by Wrecker 1. Swanson relayed those complaints to the County and encouraged Smith to contact the County directly. Smith did so; she also had a meeting with the city manager. In February 2012, the County held a due cause hearing regarding the complaints. None of the defendants were present at the hearing, and Stacy concedes that the defendants had “[nothing] to do with the evidence ... provided at the hearing.” In April 2012, based upon evidence introduced at the hearing, the County suspended Wrecker 1 from towing for 90 days after concluding that it had overcharged customers on 24 occasions.

Unrelated to the defendants’ complaints, the Wrecker Services Committee received a complaint from Lee Hamlin regarding a claim of overcharging. In2012, atruck owned by Hamlin was in an accident with a truck owned by Penske, and Wrecker 1 cleared Hamlin’s truck from the roadway; Hamlin offered to pay for services rendered in moving the truck to the shoulder but requested that Wrecker 1 not tow the truck from the scene. Wrecker 1 not only disregarded Hamlin’s request, it also charged him $11,647.75 for the tow.

On August 28, 2012, the Wrecker Service Committee conducted a due cause hearing on Hamlin’s complaint. Although Wrecker 1 received notice of the hearing, no one from the company attended the hearing. The Committee issued a written ruling finding that Wrecker 1 had overcharged Hamlin by $7,822.75. Although Penske did not contest its bill, the Committee also reviewed Wrecker l’s $13,965 invoice to Penske and found that Wrecker 1 overcharged Penske by $13,055. Based upon the finding of overcharges to Penske and Hamlin, falsification of invoices, and the evidence supporting Wrecker l’s prior suspension, the Committee permanently removed Wrecker 1 from its list of authorized towing companies.

The same day as the hearing, Wrecker 1 and Stacy Richardson filed suit against the Swanson defendants, alleging a claim for tortious interference with business relations. Specifically, the plaintiffs alleged that Swanson was responsible for Wrecker l’s removal from the County’s list of authorized wreckers. In September 2012, the plaintiffs amended the complaint to include claims for libel and slander based upon comments made by Cha and McCallister that allegedly soiled the plaintiffs’ reputations and erroneously linked Wrecker 1 with Silent Night. Swanson moved for summary judgment on all three claims, and the trial court denied the motion. This appeal followed.

1. Tortious interference with business relations. The defendants argue that the trial court erred by denying their motion for summary judgment as to the plaintiffs’ claim of tortious interference with business relations. We agree.

Tortious interference claims, whether asserting interference with contractual relations, business relations, or potential business relations, share certain common essential elements: (1) improper action or wrongful conduct by the defendant[s] without privilege; (2) the defendant[s] acted purposely and with malice with the intent to injure; (3) the defendant^] induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff [s]; and (4) the defendant[s’] tortious conduct proximately caused damage to the plaintiff[s].

Here, pretermitting whether the plaintiffs can establish the first two elements, they have failed to establish that it was the defendants’ conduct that induced Henry County to remove Wrecker 1 from the list of authorized towing services. Even assuming that the defendants’ conduct in making complaints and encouraging Smith to do the same instigated the investigation, the County did not suspend and ultimately terminate Wrecker l’s status based upon the defendants’ complaints. Rather, the County conducted hearings at which it took in evidence from Hamlin and Smith before making its decisions regarding Wrecker 1. The defendants did not participate at either hearing. Under these circumstances, the plaintiffs have failed to demonstrate that the defendants either induced Henry County to discontinue the business relationship with Wrecker 1 or proximately caused Wrecker l’s damages. Accordingly, Wrecker l’s claim for tortious interference fails as a matter of law.

2. Defamation. The defendants also allege that the trial court erred by denying their motion for summary judgment as to the plaintiffs’ claims for libel and slander. Again, we agree.

First, we note that the claims are not particularly well set forth in the amended complaint, which alleges that Cha and McCallister “published and communicated defamatory statements.” The exact defamatory statements are not identified. Before the trial court, Wrecker 1 pointed to statements made by the defendants equating Wrecker 1 with the defunct Silent Night, which Wrecker 1 alleges “soil[ed its] reputation.”

OCGA § 51-5-1 (a) defines libel as “a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” Slander may consist of “[m]ak-ing charges against another in reference to [her] trade, office, or profession, calculated to injure [her].” Both libel and slander constitute defamation.

Generally, there are four elements in a cause of action for defamation: (1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special harm or the actionability of the statement irrespective of special harm.

(a) McCallister’s statements that Wrecker 1 had “no morals”and that the Richardsons are “crookfs].”

In an e-mail to a County official, McCallister alleged that Wrecker 1 “had no morals” and characterized the Richardsons as “mean, vulgar, demeaning[ ] crook[s]These statements are not actionable because they are expressions of opinion.

[A] defamation action will lie only for a statement of fact. This is because a statement that reflects an opinion or subjective assessment, as to which reasonable minds could differ, cannot be proved false. As a result, a plaintiff who claims that a published opinion defamed him will generally be unable to carry his burden of proving the essential element of falsity. Still, there is no wholesale defamation exception for anything that might be labeled opinion.

With regard to implications of criminal activity,

the words at issue must charge the commission of a specific crime punishable by law. Where the plain import of the words spoken impute no criminal offense, they cannot have their meaning enlarged by innuendo. Indeed, the statement must give the impression that the crime is actually being charged against the individual and couched in language as might reasonably be expected to convey such meaning to a hearer of the statement; a vague statement or even a derogatory one does not amount to slander per se when a person cannot reasonably conclude from what is said that the comments are imputing a crime to the plaintiff.

Here, the defendants’ statements characterizing the plaintiffs as without morals and as “mean, vulgar, demeaning[ ] crook[s]” do not allege a specific crime. Instead, they constitute expressions of opinion, which are not actionable.

Decided June 22, 2017.

Smith, Welch, Webb & White, John P. Webb, Orion G. Webb, for appellants.

(b) Statements equating Wrecker 1 with Silent Night. Similarly, the defendants’ statements equating Wrecker 1 with Silent Night are not actionable. The plaintiffs do not point to a specific statement by the defendants but instead allege generally that the statements that characterize Wrecker 1 as a continuation of Silent Night are defamatory. But the defendants did not state that the two companies are the same legal entity Instead, they alleged that Wrecker 1 “used to be under the name of Silent Knight [sic] Towing and got in HOT water with the [PSC] (which is public record on the Internet for you to see) so they changed their name to Wrecker 1.” It is undisputed that the PSC revoked Silent Night’s towing permit, and therefore this portion of the statement is true, as is the fact that the owners of both companies are married to each other. To the extent that the defendants characterize Wrecker 1 as a continuation of Silent Night, incorporated in an attempt to evade the negative reputation of Silent Night and to obtain a towing permit, that is an “expression of opinion on matters with respect to which reasonable men might entertain differing opinions. . . .”

(c) Allegations that Wrecker 1 overcharged customers. Finally, to the extent that the plaintiffs alleged that the defendants’ accusations regarding Wrecker 1 overcharging customers were defamatory, such claims fail. As aforementioned, the County concluded that Wrecker 1 had, in fact, overcharged truck owners. Thus, the plaintiffs failed to establish that the accusations regarding overcharging were not true.

Accordingly, the trial court erred by denying the defendants’ motion for summary judgment as to the plaintiffs’ defamation claims.

Judgment reversed.

Miller, P. J., and Reese, J., concur.

Fisher Broyles, Joel M. Ferdinand, Cammi R. Jones, for appel-lees.

       The trial court granted summary judgment to the defendants as to Richardson’s individual claim for tortious interference with business relations. That ruling is not at issue in this appeal.

        Metro Atlanta Task Force for the Homeless v. Ichthus Community Trust, 298 Ga. 221, 224 (1) (b) (780 SE2d 311) (2015), quoting Giles v. Swimmer, 290 Ga. 650, 651 (1) (725 SE2d 220) (2012).

       Pursuant to Henry County Wrecker Ordinance 08-03, ch. 3-4, art. Ill, § 3-4-334, a copy of which appears in the record, the County maintained a list of approved wrecker companies and had a “Wrecker Services Committee” that enforced the ordinance provisions, accepted applications and added qualified wreckers, and revoked or suspended wrecker companies if appropriate after a due cause hearing. The Committee was authorized to enforce a fee schedule that approved wrecker companies could charge.

       Before Wrecker 1 was added to the list, Swanson conducted tows in the northern portion of the county, and a separate company — Elkins — operated in the southern portion. Once Wrecker 1 was added to the list, they shared tows in the northern portion with Swanson.

       Elkins, the other approved wrecker on the County list, also made complaints about Wrecker 1.

       The Committee also noted that Wrecker 1 attempted to sell Hamlin’s vehicle when he refused to pay the excessive invoice.

        Chaney v. Harrison & Lynam, 308 Ga. App. 808, 818 (2) (708 SE2d 672) (2011), quoting Kirkland v. Tamplin, 285 Ga. App. 241, 243 (1) (645 SE2d 653) (2007) (punctuation omitted).

       See Tribeca Homes v. Marathon Investment Corp., 322 Ga. App. 596, 599 (2) (745 SE2d 806) (2013) (tortious interference claim failed because plaintiff could not show that, independent of alleged misdeeds, the result would have been different); Barnwell v. Barnett & Co., 222 Ga. App. 694, 695 (1) (476 SE2d 1) (1996) (defendant could not be held liable for tortious interference because the defendant had no input in decision-making).

       See Duke Galish, LLC v. Manton, 291 Ga. App. 827, 832 (1) (662 SE2d 880) (2008).

       OCGA §51-5-4 (a) (3).

       See Ajouelo v. Auto-Soler Co., 61 Ga. App. 216, 221 (6 SE2d 415) (1939).

       (Punctuation omitted.) Renton v. Watson, 319 Ga. App. 896, 900 (2) (739 SE2d 19) (2013), quoting Wertz v. Allen, 313 Ga. App. 202, 205 (1) (721 SE2d 122) (2011).

       (Punctuationomitted.) Cottrell v. Smith, 299 Ga. 517, 523 (II) (A) (788 SE2d 772) (2016), quoting Gettner v. Fitzgerald, 297 Ga. App. 258, 261 (1) (a) (677 SE2d 149) (2009).

       (Citation and punctuation omitted.) Cottrell, 299 Ga. at 524 (II) (A).

       See id. at 529 (II) (A) (2) (holding that allegations that the plaintiff was “not trustworthy” and that “his activities with the women that he has deceived and taken money from are criminal” constitute opinion). See also Gast v. Brittain, 277 Ga. 340, 341 (589 SE2d 63) (2003) (“assertions regarding ‘immorality’ . . . are plainly the sorts of opinions that are incapable of being proved false”); Janet Ricker Builder, Inc. v. Gardner, 244 Ga. App. 753, 756 (4) (536 SE2d 777) (2000) (holdingthat a sign in a homeowner’s window statingthat her house was a “lemon” is “a constitutionally protected expression of opinion” that could not support a claim for tortious interference with business relations).

       (Punctuation omitted.) Gast, 277 Ga. at 341, quoting Bergen v. Martindale-Hubbell, Inc., 176 Ga.App. 745, 747 (3) (337 SE2d 770) (1985). See also Collins v. Cox Enterprises, 215 Ga.App. 679, 680 (452 SE2d 226) (1994) (newspaper editorial stating that PSC candidate was trying to “fool voters” by changing his name “does not imply an assertion of objective fact that might be proved false; rather, it is merely speculation as to [the candidate’s] motive based on his behavior”).

       See, e.g., Barna Log Homes of Ga. v. Wischmann, 310 Ga.App. 844, 846 (1) (a) (714 SE2d 402) (2011).


author: McMlLLIAN, Judge.

text:
    A17A0002.
    A17A0003.
    HOSPITAL AUTHORITY OF VALDOSTA/LOWNDES COUNTY et al. v. FENDER et al. SPELL et al. v. FENDER et al.
    (802 SE2d 346)
   McMlLLIAN, Judge.

Dennis H. Fender and Penny B. Fender brought this medical malpractice action against Hospital Authority of Valdosta/Lowndes County d/b/a South Georgia Medical Center (“SGMC”), Melissa Brackin, Dr. Andrew Spell, and Radiology Associates of Valdosta, LLC (“Radiology Associates”), alleging that the negligent performance and interpretation of a carotid artery ultrasound study resulted in Mr. Fender suffering a massive stroke and permanent brain damage. After the trial court denied the defendants’ motions for summary judgment and to exclude the opinion testimony of one of the plaintiffs’ medical experts, the trial court issued certificates of immediate review, and the defendants filed applications for interlocutory appeal, which we granted. These companion appeals followed.

In Case No. A17A0002, SGMC and Brackin (collectively, the “Hospital Defendants”) contend that the trial court erred in denying their motions for summary judgment because the plaintiffs’ claims were barred by the applicable two-year statute of limitation and the plaintiffs failed to prove causation. Additionally, SGMC contends that the trial court erred in denying its motion for summary judgment on the plaintiffs’ claims for negligent hiring, training, supervision, and retention. In Case No. A17A0003, Dr. Spell and Radiology Associates (collectively, the “Radiology Defendants”) contend that the trial court erred in denying their motion for summary judgment because the plaintiffs’ claims were barred by the statute of limitation and in denying their motion to exclude certain expert opinion testimony

For the reasons discussed below, we conclude that the trial court erred in denying SGMC’s motion for summary judgment on the plaintiffs’ claims against it for the negligent hiring, training, supervision, and retention of Brackin. Accordingly, in Case No. A17A0002, we reverse the trial court’s denial of summary judgment to SGMC on the plaintiffs’ claims for negligent hiring, training, supervision, and retention, and we remand for the entry of summary judgment in favor of SGMC on those claims. We affirm in all other respects in both appeals.

Case No. A17A0002

1. The Hospital Defendants argue that the trial court erred in denying their motions for summary judgment on the statute of limitation and causation. Summary judgment is appropriate only if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). On appeal from the trial court’s denial of summary judgment, “we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.” (Citation, punctuation and footnote omitted.) MCG Health v. Barton, 285 Ga. App. 577, 578 (647 SE2d 81) (2007). “We do not resolve disputed facts, reconcile the issues, weigh the evidence, or determine its credibility, as those matters must be submitted to a jury for resolution.” Tookes v. Murray, 297 Ga. App. 765, 766 (678 SE2d 209) (2009). Guided by these principles, we turn to the factual and procedural background in the present case before addressing the Hospital Defendants’ specific arguments.

May 18, 2009. The record reflects that on May 18, 2009, Mrs. Fender drove Mr. Fender to the emergency room at SGMC after he woke up with disorientation, a headache, dizziness, extremely high blood pressure, and blurred vision. In the emergency room, Mr. F ender’s blurred vision progressed to a loss of peripheral vision in his left eye. At the time he presented to the emergency room with these symptoms, Mr. Fender was 53 years old and had several risk factors for stroke, including a history of high blood pressure and high cholesterol and the fact that he was a smoker. He also had a family history of stroke.

Mr. Fender was admitted to the hospital, where he underwent an ultrasound of his carotid arteries, the vessels in the neck that supply blood to the face and brain. A carotid ultrasound is a diagnostic imaging tool used to evaluate carotid arteries for narrowing, or stenosis, caused by plaque. An ultrasound technician called a sono-grapher performs the imaging and takes the blood flow velocity measurements, which are then provided to a radiologist or other physician who interprets them.

Mr. Fender’s ultrasound study was performed by Brackin, a sonographer employed by SGMC, who then sent her documentation to Dr. Spell, the hospital’s on-call radiologist who practiced with Radiology Associates. Dr. Spell interpreted the ultrasound study and concluded that Mr. Fender had mild narrowing in his left internal carotid artery from the plaque, but no significant stenosis. Dr. Spell believed that the ultrasound study had been performed correctly and that no further imaging or testing was necessary to evaluate the extent of the narrowing in Mr. Fender’s carotid artery Dr. Spell’s ultrasound report was provided to the hospital clinicians involved in making Mr. Fender’s treatment decisions.

Following Dr. Spell’s interpretation of the ultrasound study as showing no significant stenosis, Mr. and Mrs. Fender were told that the results of the ultrasound study were “normal” and that Mr. Fender’s symptoms were the result of a “hypertensive crisis.” Mr. Fender was discharged from the hospital on May 19 and told to follow up with his primary care physician and with an ophthalmologist. Mr. Fender carried on with his life as before the May 2009 incident, pursuing his usual occupation of driving a tractor-trailer rig.

A week after Mr. Fender was discharged from the hospital, Mr. and Mrs. Fender visited their primary care physician, who informed them that Mr. Fender had suffered a transient ischemic attack (“TIA”), which causes temporary symptoms that can resemble the symptoms of a stroke. See Mayo Clinic Staff, Definition of Transient Ischemic Attack (TIA), The Mayo Clinic, http://www.mayoclinic.com/ health/conditions/transient-ischemic-attack/symptoms-causes/dxc-20314622 (last visited June 20, 2017). Mr. Fender’s physician counseled him to stop smoking and to continue his medication for high blood pressure and high cholesterol. No additional ultrasounds or other testing were ordered.

In addition to seeing his primary care physician, Mr. Fender saw an ophthalmologist approximately two weeks after his discharge from the hospital. A medical record from the ophthalmologist visit stated that Mr. Fender complained of continued vision problems in his left eye. However, Mrs. Fender testified that Mr. Fender had stopped complaining of any symptoms from the May 2009 incident, including any vision problems in his left eye, by the time he was discharged from the hospital and that, to her knowledge, Mr. Fender went a period of time without any symptoms.

April 7, 2010. On April 7, 2010, Mr. Fender suddenly collapsed at his home. Mr. Fender was unable to move or speak and did not recognize his family. Mrs. Fender called 911, and an ambulance transported Mr. Fender to the hospital, where he was diagnosed with having suffered a massive stroke. Ultrasound imaging showed a complete obstruction of his left internal carotid artery in the same location as the plaque shown in the May 2009 ultrasound. Additional testing showed that the stroke had caused extensive brain damage.

The Medical Malpractice Action. Mr. and Mrs. Fender commenced the present action against the defendants on April 2, 2012, less than two years after his 2010 stroke, seeking damages for medical malpractice and loss of consortium. The plaintiffs alleged that Brackin had negligently performed the carotid ultrasound study of Mr. Fender on May 18, 2009 by failing to recognize significant stenosis in his left internal carotid artery caused by a large plaque formation, failing to properly measure velocities in the area of the stenosis, and failing to reproduce all appropriate images during the ultrasound. The plaintiffs further alleged that Dr. Spell had negligently interpreted the May 2009 ultrasound study by failing to recognize, document, and diagnose the significant visible stenosis in Mr. Fender’s left internal carotid artery caused by the large plaque formation, and by failing to recognize inaccuracies in the ultrasound study that necessitated further imaging and measurements. According to the plaintiffs, if the ultrasound study had been properly performed by Brackin and evaluated by Dr. Spell, Mr. Fender would have been diagnosed with significant stenosis and would have undergone surgical intervention to address the extensive plaque buildup in his left internal carotid artery, such that his stroke in April 2010 caused by the plaque would have been avoided.

In addition to Brackin and Dr. Spell, the plaintiffs sought to recover against SGMC and Radiology Associates under the doctrine of respondeat superior. The plaintiffs also sought to recover against SGMC on the basis that it was negligent in hiring, training, supervising, and retaining Brackin. The plaintiffs sought compensatory damages, but not punitive damages.

The defendants answered, denying liability, and raised several affirmative defenses, including that the plaintiffs’ claims were barred by the applicable two-year statute of limitation. Following discovery, the defendants moved for summary judgment on the grounds that the plaintiffs had failed to present sufficient evidence to establish the causation element of their claims. Additionally, SGMC moved for summary judgment on the plaintiffs’ claims for the negligent hiring, training, supervision, and retention of Brackin, contending that the plaintiffs were limited to pursuing a claim against SGMC based on respondeat superior. The defendants also filed motions to exclude the opinion testimony of Dr. Avery J. Evans, an interventional neuro-radiologist retained as an expert by the plaintiffs. The defendants later filed supplemental motions for summary judgment asserting that the plaintiffs’ claims were barred by the two-year statute of limitation for medical malpractice claims.

After conducting a hearing, the trial court entered its order denying the defendants’ motions for summary judgment and for the exclusion of Dr. Evans’ expert opinion testimony. The trial court certified its order for immediate review, and the defendants filed applications for interlocutory appeal, which this Court granted, resulting in these companion appeals.

(a) The Hospital Defendants first contend that the trial court erred in denying their supplemental motion for summary judgment because the uncontroverted evidence showed that the plaintiffs’ claims were barred by the two-year statute of limitation found in OCGA § 9-3-71 (a). According to the Hospital Defendants, the plaintiffs’ claims accrued on May 18, 2009, when Mr. Fender was injured by allegedly being misdiagnosed as having no significant stenosis in his left internal carotid artery, and therefore the plaintiffs were required to bring their suit within two years of that date, which they failed to do. We are unpersuaded because a genuine issue of material fact exists as to whether Mr. Fender suffered a new injury on April 7, 2010, and the plaintiffs filed their action within two years of that date.

The statute of limitation for medical malpractice actions is set forth in OCGA § 9-3-71 (a), which provides, in pertinent part, that “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.”

Generally, in malpractice cases involving a misdiagnosis that resulted in a failure to properly treat a condition, the “injury” referred to in OCGA § 9-3-71 (a) occurs at the time of the misdiagnosis. This is because the patient usually continues to experience pain, suffering, or economic loss from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. Under these circumstances, the misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis. Therefore, the limitation period usually runs from the date of the misdiagnosis.

(Citations and punctuation omitted.) Ward v. Bergen, 277 Ga. App. 256, 258 (626 SE2d 224) (2006). See Kaminer v. Canas, 282 Ga. 830, 831-832 (1) (653 SE2d 691) (2007).

The proposition that the limitation period imposed by OCGA § 9-3-71 (a) runs from the date of the misdiagnosis, however, “is only generally true.” (Emphasis in original.) Sidlow v. Lewis, 271 Ga. App. 112, 116 (2) (608 SE2d 703) (2004). Georgia courts recognize a limited exception to that general proposition “in cases where a misdiagnosis and failure to provide proper treatment results in the development of a new and different injury than that which existed at the time of the misdiagnosis.” Ward, 277 Ga. App. at 258. In cases where the new injury exception applies, the limitation period begins to run from the date the symptoms attributable to the new injury first manifest. Cleaveland v. Gannon, 284 Ga. 376, 383 (3) (667 SE2d 366) (2008); Amu v. Barnes, 283 Ga. 549, 553 (662 SE2d 113) (2008). “In order for this exception to apply, not only must there be evidence that the patient developed a new injury, but he or she also must remain asymptomatic for a period of time following the misdiagnosis.” (Citation and punctuation omitted.) Amu, 283 Ga. at 552. And in addressing these questions, we are mindful that the statute of limitation defense is an affirmative defense under OCGA § 9-11-8 (c), and thus the burden of proof was on the Hospital Defendants to show that the statute bars the plaintiffs’ claims. Brown v. Coast Dental of Ga., 275 Ga. App. 761, 767 (1) (622 SE2d 34) (2005).

In the present case, it is undisputed that Mr. Fender suffered a new and massive stroke in April 2010, so the issue turns on whether Mr. Fender remained asymptomatic for a period of time following the misdiagnosis. Mrs. Fender testified that Mr. Fender stopped complaining of any symptoms from the May 2009 incident by the time he was discharged from the hospital after his alleged misdiagnosis and that, to her knowledge, Mr. Fender had experienced a period of time without any symptoms before his massive stroke in April 2010. While other evidence, such as the previously discussed medical record from Mr. Fender’s June 2009 ophthalmologist appointment, reflect that Mr. Fender may have had some residual symptoms, this “case is on summary judgment, and the evidence must be construed most favorably for [the plaintiffs].” Cleaveland, 284 Ga. at 382 (2). Consequently, when the plaintiffs are given “the benefit of all reasonable doubts” and “the evidence and all inferences and conclusions therefrom” are construed in their favor, there was evidence that Mr. Fender experienced an asymptomatic period between his alleged misdiagnosis in May 2009 and his stroke in April 2010. (Citation and punctuation omitted.) Brown, 275 Ga. App. at 768 (1). See also Cleaveland, 284 Ga. at 384 (Melton, J., concurring) (“critical factual determination” for determining whether the “new injury” exception applies is whether the patient experienced an asymptomatic period between the initial diagnosis and the onset of new symptoms).

For these reasons, the trial court did not err in determining that there was evidence that Mr. Fender incurred a new injury when he suffered a massive stroke and permanent brain damage on April 7, 2010, and in concluding that the two-year limitation period could begin to run on that date, which would render the plaintiffs’ malpractice action timely. The trial court thus committed no error in denying the Hospital Defendants’ supplemental motion for summary judgment based on the statute of limitation.

(b) The Hospital Defendants argue the trial court erred in denying their motion for summary judgment because the plaintiffs failed to establish the causation element of their medical malpractice claims. According to the Hospital Defendants, the plaintiffs failed to show that Mr. Fender’s April 2010 stroke could have been avoided, if Brackin had performed the ultrasound study differently. We disagree.

To establish a claim for medical malpractice, a plaintiff must prove that the defendant’s negligence in the diagnosis and treatment of the plaintiff was the actual and proximate cause of the injuries he sustained. King v. Zakaria, 280 Ga. App. 570, 575 (2) (b) (634 SE2d 444) (2006). See Zwiren v. Thompson, 276 Ga. 498, 499-500 (578 SE2d 862) (2003); Walker v. Giles, 276 Ga. App. 632, 638 (624 SE2d 191) (2005). The causation element requires the plaintiff to establish to a reasonable degree of medical certainty that the injury to the plaintiff would have been avoided in the absence of the alleged medical negligence. Anthony v. Chambless, 231 Ga. App. 657, 659 (1) (500 SE2d 402) (1998).

Causation in a medical malpractice case must be proven through expert testimony “because the question of whether the alleged professional negligence caused the plaintiff’s injury is generally one for specialized expert knowledge beyond the ken of the average layperson.” Zwiren, 276 Ga. at 500. However, “Georgia case law requires only that an expert state an opinion regarding proximate causation in terms stronger than that of medical possibility, i.e., reasonable medical probability or reasonable medical certainty” Id. at 503. Moreover, “[cjausation maybe established by linking the testimony of several different experts” and “must be determined in light of the evidentiary record as a whole.” Walker, 276 Ga. App. at 642 (1). And “[qjuestions regarding causation are peculiarly questions for the jury except in clear, plain, palpable and undisputed cases.” (Punctuation and footnote omitted.) Moore v. Singh, 326 Ga. App. 805, 809 (1) (755 SE2d 319) (2014).

In the present case, the plaintiffs’ medical experts opined that at the time of the May 2009 ultrasound study conducted by Brackin, it was more likely than not, to a reasonable degree of medical certainty, that Mr. Fender had significant stenosis in his left internal carotid artery that exceeded 50 percent and elevated velocities in the area of the stenosis. Specifically, Dr. Stone, a cardiovascular surgeon retained by the plaintiffs as an expert, opined that Brackin had violated the standard of care by failing to sufficiently describe and measure the degree of the stenosis, and by failing to take several velocity measurements in the area of the stenosis.

In addition, Dr. Evans, a neuroradiologist retained by the plaintiffs, opined that Brackin violated the standard of care by failing to recognize the significant degree of the stenosis in Mr. Fender’s artery and failing to take velocity measurements at that location. Dr. Evans further opined that Brackin violated the standard of care by taking a velocity measurement purportedly in the area of the stenosis that in fact was taken in a different, area, and by providing documentation to Dr. Spell, the radiologist, that inaccurately measured the blood flow velocity and degree of the stenosis.

Dr. Evans also opined that Brackin’s erroneous documentation “suggested wrongly that the patient did not have a significant steno-sis,” and that if a stenosis of greater than 50 percent had been properly identified in this case, it would have most likely resulted in surgical intervention to correct the stenosis before Mr. Fender’s massive stroke, given Mr. Fender’s other risk factors and his family history of stroke. Consequently, Dr. Evans opined, Brackin’s erroneous ultrasound study resulted in Mr. Fender’s massive stroke in April 2010 to a high degree of medical certainty

In light of this combined expert testimony, we cannot say that the plaintiffs failed to come forward with sufficient evidence of causation. To the extent that any of the plaintiffs’ experts gave other, conflicting testimony on the issue of causation, such contradictions go only to the credibility of the experts and are for the jury to resolve. See Moore, 326 Ga. App. at 811 (2); Aleman v. Sugarloaf Dialysis, LLC, 312 Ga. App. 658, 662 (2) (719 SE2d 551) (2011). The evidence regarding causation was not so “clear, plain, palpable and undisputed” as to demand the entry of summary judgment in favor of the Hospital Defendants. Moore, 326 Ga. App. at 809 (1).

The Hospital Defendants nevertheless argue that the testimony of the plaintiffs’ medical experts is insufficient to establish causation because Dr. Spell testified that he was satisfied with Brackin’s ultrasound study and would not have diagnosed Mr. Fender with significant stenosis in the absence of stenosis greater than 70 percent and a blood flow velocity of greater than 230 centimeters per second. However, Dr. Spell’s testimony on the issue is not dispositive, given that the plaintiffs’ experts also testified that Dr. Spell violated the standard of care in this case by failing to identify the significant degree of stenosis reflected in the grayscale ultrasound images and failing to order further testing in light of Brackin’s clearly deficient ultrasound study. Furthermore, Dr. Spell testified that he did not make treatment decisions, but simply passed on his radiological results to a qualified clinician, and the plaintiffs’ experts opined that if the properly identified degree of stenosis of greater than 50 percent had been identified by Brackin and Dr. Spell, it most likely would have led to successful surgical intervention under the circumstances of this case before Mr. Fender suffered the massive stroke. Given this combined testimony, a jury would be entitled to find that Brackin’s negligence in performing the ultrasound study was “a link in the chain of incorrect decisions made with regard to [Mr. Fender’s] treatment” and that her negligence, combined with Dr. Spell’s negligence, led to the catastrophic outcome in this case. MCG Health, 285 Ga. App. at 585 (4). The Hospital Defendants’ causation argument thus is unpersuasive, and the trial court committed no error in denying the Hospital Defendants’ motion for summary judgment on that ground.

2. SGMC contends that the trial court erred in denying its motion for summary judgment on the plaintiffs’ claims against it for the negligent hiring, training, supervision, and retention of Brackin. According to SGMC, the plaintiffs were limited to pursuing a vicarious liability claim against SGMC based on the doctrine of respondeat superior, given that SGMC has conceded that it can be held liable under that doctrine if Brackin is found negligent in performing the ultrasound study, and given that the plaintiffs are not seeking punitive damages. We agree with SGMC.

Under Georgia law, if a defendant employer concedes that it will be vicariously liable under the doctrine of respondeat superior if its employee is found negligent, the employer is entitled to summary judgment on the plaintiff’s claims for negligent entrustment, hiring, training, supervision, and retention, unless the plaintiff has also brought a valid claim for punitive damages against the employer for its own independent negligence (hereinafter, the “Respondeat Superior Rule”). See MasTec N. America v. Wilson, 325 Ga. App. 863, 865 (755 SE2d 257) (2014); Kelley v. Blue Line Carriers, 300 Ga. App. 577, 580 (2) (685 SE2d 479) (2009); Durben v. American Materials, 232 Ga. App. 750, 751 (1) (503 SE2d 618) (1998); Bartja v. Nat. Union Fire Ins. Co. of Pittsburgh, Pa., 218 Ga. App. 815, 817 (2) (463 SE2d 358) (1995). One reason for this rule is because allowing such claims “would not entitle the plaintiff to a greater recovery, but would merely serve to prejudice the employer” through, for example, the introduction of unfairly prejudicial information about the employee’s prior employment history. (Citation and punctuation omitted.) MasTec N. America, 325 Ga. App. at 865.

Here, SGMC admitted that Brackin was acting within the course and scope of her employment with SGMC when she performed the ultrasound and that it could be held liable under the doctrine of respondeat superior if Brackin is found negligent. Because SGMC has admitted the applicability of respondeat superior and the plaintiffs have not asserted a claim for punitive damages, SGMC is entitled to summary judgment on the plaintiffs’ claims of negligent hiring, training, supervision, and retention based on the Respondeat Superior Rule.

The plaintiffs argue that the Respondeat Superior Rule should not be applied in the medical malpractice context. It is true that there is a limited exception to the Respondeat Superior Rule for claims brought against a hospital for the negligent credentialing of staff physicians and other similar medical providers. See Wellstar Health Sys. v. Green, 258 Ga. App. 86, 88 (1) (572 SE2d 731) (2002). This is because “a hospital has a direct and independent responsibility to its patients to take reasonable steps to ensure that staff physicians using hospital facilities are qualified for privileges granted.” (Punctuation and footnote omitted.) McCall v. Henry Med. Center, 250 Ga. App. 679, 681 (1) (551 SE2d 739) (2001). See Wellstar Health Sys., 258 Ga. App. at 88 (1) (permitting negligent credentialing claim for failure to ensure that certified nurse practitioner was qualified for privileges granted at hospital). Moreover, unlike vicarious liability claims based on respondeat superior, negligent credentialing claims are “not dependent on a master-servant relationship.” (Citation and punctuation omitted.) Id. at 88 (1). However, the plaintiffs did not bring a negligent credentialing claim in this case, and thus the exception for those claims to the Respondeat Superior Rule is inapplicable.

The plaintiffs also argue that the Respondeat Superior Rule has been supersededby Georgia’s apportionment statute, OCGA § 51-12-33 (b). Our courts have not directly addressed this argument, but in a different context, we have held that the apportionment statute does not apply where a defendant employer faces only vicarious liability under the doctrine of respondeat superior because the employer and employee “are regarded as a single tortfeasor.” PN Express v. Zegel, 304 Ga. App. 672, 680 (5) (697 SE2d 226) (2010). See also Camelot Club Condo. Assn. v. Afari-Opoku, 340 Ga. App. 618, 626 (2) (b) (798 SE2d 241) (2017).

Like claims based on respondeat superior, claims against a defendant employer for the negligent hiring, training, supervision, and retention of an employee are derivative of the underlying tortious conduct of the employee. See Metropolitan Atlanta Rapid Transit Auth. v. Mosley, 280 Ga. App. 486, 489 (2) (634 SE2d 466) (2006); Oswell v. Nixon, 275 Ga. App. 205, 208 (1) (620 SE2d 419) (2005); Phinazee v. Interstate Nationalease, 237 Ga. App. 39, 41 (514 SE2d 843) (1999); Coleman v. Housing Auth. of Americus, 191 Ga. App. 166, 167 (1) (381 SE2d 303) (1989). Thus, where, as here, the employer has admitted respondeat superior liability and the plaintiff is not seeking punitive damages, the claims for negligent hiring, training, supervision, and retention “are merely duplicative of the respondeat superior claim.” (Citation and punctuation omitted.) MasTec N. America, 325 Ga. App. at 865.

Given that we have held that the apportionment statute does not apply to claims based on respondeat superior liability, see PN Express, 304 Ga. App. at 680 (5), we discern no basis for applying the statute to the “merely duplicative” claims of negligent hiring, training, supervision, and retention. Accordingly, the plaintiffs’ argument based on the apportionment statute is misplaced, and summary judgment should have been granted to SGMC on the plaintiffs’ negligent hiring, training, supervision, and retention claims based on the Respondeat Superior Rule.

Case No. A17A0003

3. The Radiology Defendants contend that the trial court erred in denying their supplemental motion for summary judgment because the uncontroverted evidence showed that the plaintiffs’ claims were barred by the applicable two-year statute of limitation. We disagree for the reasons discussed supra in Division 1 (a).

4. The Radiology Defendants further argue that the trial court erred in denying their motion to exclude the expert opinions of Dr. Evans because the plaintiffs failed to demonstrate that his opinions were sufficiently reliable to be admissible. We are unpersuaded.

OCGA § 24-7-702 (b), which governs the admissibility of expert opinion testimony in civil cases under Georgia’s new Evidence Code, provides:

(b) 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.

The trial court’s role under OCGA § 24-7-702 (b) is to act as a gatekeeper who ensures the relevance and reliability of proposed expert opinion testimony Scapa Dryer Fabrics v. Knight, 299 Ga. 286, 289 (788 SE2d 421) (2016). See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597 (IV) (113 SCt 2786, 125 LE2d 469) (1993). “Generally speaking, a trial court must assess three aspects of proposed expert testimony—the qualifications of the expert, the reliability of the testimony, and the relevance of the testimony—to discharge its responsibilities as a gatekeeper under [OCGA § 24-7-702 (b)].” Scapa Dryer Fabrics, 299 Ga. at 289. A trial court’s determination regarding the admissibility of expert opinion testimony “will not be disturbed absent a manifest abuse of discretion.” (Citation and punctuation omitted.) HNTB Ga. v. Hamilton-King, 287 Ga. 641, 642 (1) (697 SE2d 770) (2010).

The Radiology Defendants do not challenge Dr. Evans’ qualifications as an expert. Instead, the Radiology Defendants’ sole argument is that the trial court manifestly abused its discretion in finding that Dr. Evans’ expert opinion testimony was reliable. Specifically, the Radiology Defendants challenge the reliability of Dr. Evans’ expert opinion that Mr. Fender had “significant stenosis” in his left internal carotid artery in May 2009 that was of greater severity than diagnosed by Dr. Spell. According to the Radiology Defendants, Dr. Evans’ opinion was inherently unreliable and should have been excluded because it was based “solely” upon his interpretation of the longitudinal grayscale images taken by Brackin during the May 2009 ultrasound study, while ignoring cross-sectional measurements and velocity measurements of the stenosis that had also been taken by Brackin.

The Radiology Defendants’ argument is unpersuasive. Contrary to their assertion, the record reflects that Dr. Evans did not base his opinion regarding the significance of the stenosis in May 2009 “solely” on the longitudinal grayscale images taken by Brackin. Rather, Dr. Evans testified that he also took into account the fact that by April 2010, Mr. Fender’s stenosis in the artery had progressed to 100 percent. Dr. Evans opined that, based on his extensive training and experience with ultrasounds and carotid artery procedures, the progression of the stenosis to 100 percent in only 11 months most probably reflected a stenosis of greater than 50 percent in May 2009, rather than the rapid progression of a “tiny, insignificant plaque to occlusion in [the] short 11-month time frame.” Furthermore, the record indicates that Dr. Evans did not simply “ignore” the cross-sectional measurements and velocity measurements of the stenosis taken by Brackin in May 2009; rather, he analyzed the measurements during his deposition testimony and concluded that the measurements were inaccurate in assessing the degree of stenosis, were taken at the wrong locations, and were “not helpful.”

The Radiology Defendants also argue that Dr. Evans’ opinions that the May 2009 ultrasound showed stenosis that exceeded 50 percent in Mr. Fender’s left internal carotid artery, and peak blood flow velocities in excess of 150 centimeters per second, were based on speculation and guesswork, given that Dr. Evans conceded during his deposition that he lacked certain information and data necessary for accurately measuring stenosis. The record reflects, however, that Dr. Evans simply refused to guess or speculate on the “exact” or “actual” percentage of stenosis present in May 2009 without additional data. In contrast, Dr. Evans opined that Mr. Fender clearly had a “large-appearing plaque” in his left internal carotid artery and a “significant stenosis” not identified as such by Brackin or Dr. Spell in May 2009, and that he could estimate that the stenosis exceeded 50 percent based on his training and experience interpreting carotid ultrasounds, his analysis of the grayscale images, and the subsequent April 2010 ultrasound results.

Decided June 23, 2017

Young, Thagard, Hoffman, Smith, Lawrence & Shenton, James B. Thagard, Brian J. Miller; Hall Booth Smith, W. Brent Hyde, for Hospital Authority of Valdosta/Lowndes County et al.

Coleman Talley, Gregory T. Talley, A. A. Beau Howell IV, for Spell et al.

Lastly, the Radiology Defendants contend that Dr. Evans’ causation opinion — that Mr. Fender would have undergone surgical intervention and avoided a massive stroke if the degree of his stenosis had been properly diagnosed in May 2009 — was unreliable because Dr. Evans conceded during his first deposition that he lacked sufficient facts and data to support his opinion that Mr. Fender would have been a candidate for surgery before his April 2010 stroke. But in his second deposition, Dr. Evans testified that he had recently reviewed Mrs. Fender’s deposition and had learned of Mr. Fender’s loss of peripheral vision in his left eye during the May 2009 incident. Dr. Evans testified that Mr. Fender’s vision issue was a classic symptom of carotid arterial stenosis that, when combined with the stenosis of greater than 50 percent that was present in the artery, would have made Mr. Fender a candidate for immediate surgical intervention rather than surgery “down the road.” Thus, the Radiology Defendants’ reliance on Dr. Evans’ alleged concession is misplaced. Given the record in this case, we cannot say that the trial court manifestly abused its discretion in denying the Radiology Defendants’ motion to exclude the expert opinion testimony of Dr. Evans.

Judgment affirmed in part and reversed in part, and case remanded with instruction in Case No. Al 7A0002. Judgment affirmed in Case No. Al 7A0003.

Barnes, P. J., and Mercier, J., concur.

Dodd & Burnham, W. Michael Burnham II; Durant Law, M. Katherine Duran t, for Fender et al.

       Similarly, “plaintiffs bringing loss of consortium actions which arise out of medical malpractice have only two years in which to file their claims.” (Punctuation and footnote omitted.) Beamon v. Mahadevan, 329 Ga. App. 685, 688 (2) (766 SE2d 98) (2014).

       OCGA § 51-12-33 (b) provides:
      Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

       However, without specifically considering or addressing this issue, our courts have continued to apply the Respondeat Superior Rule even after the passage of the current version of the apportionment statute, which was enacted as part of the Tort Reform Act of 2005. See Ga. L. 2005, p. 1, § 12; MasTec N. America, 325 Ga. App. at 865; Kelley, 300 Ga. App. at 580 (2).

       The federal district court in Little v. McClure, No. 5:12-CV-147 (MTT), 2014 U.S. Dist. LEXIS 120681, at *7-8 (II) (B) (M.D. Ga. Aug. 29, 2014) held that Georgia’s apportionment statute superseded the Respondeat Superior Rule. But “ [a] s a state appellate court, we are not bound by the decisions of the federal district courts. To the contrary and asa general matter, this Court adopts such federal decisions only when they are not in conflict with our own legal precedent.” (Citation omitted.) RES-GA Hightower v. Golshani, 334 Ga. App. 176, 180 (1) (a), n.8 (778 SE2d 805) (2015).

       While the Hospital Defendants also filed a motion to exclude Dr. Evans’ testimony that was denied by the trial court, they did not challenge that ruling in their companion appeal.

       Because the Radiology Defendants filed their motion to exclude Dr. Spell’s expert testimony in October 2014, OCGA § 24-7-702 (b), under Georgia’s new Evidence Code, applies. See Ga. L. 2011, Act 52, § 101 (new Evidence Code “shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date”). However, the former statutory provision governing the admissibility of expert opinion testimony, OCGA § 24-9-67.1 (b), contained almost identical language. See Scapa Dryer Fabrics v. Knight, 299 Ga. 286, 288, n.4 (788 SE2d 421) (2016). Thus, we will rely on case law interpreting that former provision as part of our analysis.


author: Branch, Judge.

text:
    A17A0274.
    CENTRAL OF GEORGIA RAILROAD COMPANY v. ROSS.
    (802 SE2d 336)
   Branch, Judge.

Nathaniel Ross was employed as a conductor by Central of Georgia Railroad Company when, early in the morning on November 1, 2005, he fell and injured his right knee. Ross brought a suit for damages against Central under the Federal Employers’ Liability Act (“FELA”), 45 USC § 51 et seq. Almost ten years later, the case was tried before a jury, which returned a verdict for Ross for $1,033,000 and assigned contributory negligence of 40% to Ross, resulting in a net verdict of $619,800 against Central. Central appeals, arguing that it was entitled to a judgment as a matter of law in that there was no evidence that it was negligent and that Ross’s injury was caused solely by his own negligence. Central also asserts that the trial court erred with regard to certain evidentiary rulings. For the reasons that follow, we affirm.

Construed in the light most favorable to Ross as the prevailing party, the evidence shows that at about 11:30 p.m. on October 31, 2005, Ross, a one-year employee of Central, reported to work for a job that involved switching cars at a terminal where he had worked more than twenty times before the incident. To perform this work, Ross and his colleagues were often located on a ten-foot wide gravel path or road that runs east and west and parallel to the six tracks in the rail yard. Near the location of Ross’s work, drainage pipes run perpendicular to and under the tracks and road. These pipes empty out into an 11-foot wide, 42-inch deep drainage ditch located at the southern or non-track edge of the gravel road.

Photographs and testimony showed that at the time of the incident, grass and vegetation was overgrown on the east and west edges of the ditch, and that the 42-inch drop at the uneven edge of the road was not guarded by a railing, curb, or any other type of barrier or warning. There was also testimony that the ditch could not be seen without looking down right on top of the ditch itself but that it could have been seen if the vegetation had been cleared. Although there was lighting nearby, Central admits that there were no lights directly adjacent to the road and ditch where the incident occurred. There was evidence that Central provided more extensive lighting at another rail yard. Workers carried lanterns after dark, which Central provided. Ross had seen the ditch during daylight hours on previous occasions but never reported it as a dangerous condition. But that night in the dark, Ross could not see the ditch due to the vegetation, which ran many yards in each direction away from the ditch, and consequently, he did not know where the ditch was located while he was working. Central had inspected the area for safety every month for 31 years, but it had never taken any precautionary measures to protect employees from the 42-inch drop at the edge of the gravel path.

Ross was injured at about 3:00 a.m., near the end of the job. As he was holding his lantern, Ross stood on the path facing a train that was slowly going by as part of an operation that involved uncoupling and recoupling certain cars to the train and switching cars to different tracks. While other employees were working nearby, Ross was on the radio giving his engineer instructions for the train movements and simultaneously keeping track of how many train cars passed until the train was in the necessary position to stop, which he planned to communicate to the engineer. The work required looking up and down the track at the progress of the train and monitoring other details of the operation. As the operation was almost over and as Ross was looking at a distance around a curve trying to locate the last car on the train, Ross, without looking back, took a step backwards with his left foot and slid down into the ditch. Ross’s right foot stayed on top of the bank and his right knee was injured as he fell.

Ross received some treatment in a hospital emergency room the day after the accident but did not immediately report his injury to Central as required by company rules. He informed Central on November 12. One month after the accident, he had arthroscopic surgery for a torn meniscus followed by physical therapy. By March 2006, he was approved to return to work as a railroad conductor. Ross continued as a full-time conductor from March 2006 through the autumn of 2006, and he was able to do his work until October 2006, when, as is more fully explained below, he was terminated by Central. His knee pain continued, however, and he had an MRI and a second surgery by a different doctor in May 2007, as well as other treatments. Ross thereafter received another evaluation that he could return to doing the job of a conductor. Nevertheless, despite surgery, physical therapy, and knee injections, Ross, in fact, could no longer perform repetitive squatting or ladder climbing as required for his job. He continues to have pain during heavy lifting and prolonged standing. Ross saw a third doctor in September 2008, but he has not had any additional surgery. At the time of trial, he had been working for Walmart in the pharmacy for about five years.

Dr. Fred Johnson, Ross’s expert witness on economic damages, testified regarding Ross’s wage-related damages from the date of injury to trial and from the trial going forward. For damages prior to trial, Johnson took Ross’s earnings from the time of the injury in 2005 and, based on a similar Central employee, determined what Ross could have made working for Central through the date of trial, less what Ross actually made working for other employers, including Walmart, and less any earned income credit he received on his taxes. Using this calculation, Johnson determined that Ross had lost income of $158,992 in the almost ten years since the injury

For future income loss, Johnson calculated the net-present value of the difference between the after-tax income that Ross would have been receiving at the time of trial if he still worked for Central (so-called “railroad wages”) and the after-tax income that Ross was receiving in his job at Walmart, with both values extended over Ross’s remaining work-life expectancy of approximately 15 years. Using this calculation, Johnson determined Ross’s future income loss to be $236,416. Johnson also calculated Ross’s future loss of benefits from Central as $233,859. The total of these three calculations is $629,267. Other damage evidence not relevant to this appeal also was presented.

During trial and thereafter, Central argued in motions for directed verdict, for judgment notwithstanding the verdict, and for new trial that it was entitled to a judgment as a matter of law on the ground that Ross failed to show any negligence on the part of Central. The trial court denied the motions. In denying Central’s motion for new trial, the trial court found that some evidence was presented to show that Central “did not maintain a safe working place in the area of the ditch and should have known that this vegetation-covered ditch next to a walking path was a potential hazard” and that there was some evidence “that there was inadequate lighting at the location.”

1. In its first enumeration, Central argues that the trial court erred in these rulings by not entering judgment in favor of Central as a matter of law. On appeal of these rulings, this Court must determine whether there is any evidence to support the jury’s verdict. See Ga. Power Co. v. Irvin, 267 Ga. 760, 762 (1) (482 SE2d 362) (1997).

Under FELA, Central has “a duty to use reasonable care in furnishing its employees with a safe place to work.” Norfolk Southern R. Co. v. Zeagler, 293 Ga. 582, 587 (2) (a) (748 SE2d 846) (2013) (citation and punctuation omitted). This duty requires the railroad “to exercise the care that a reasonable and prudent person would exercise under the same circumstances.” Id. at 588 (2) (a) (citation and punctuation omitted). “The carrier is required to take precautions commensurate with danger inherent in the situation and to exercise ordinary care proportionate to the consequences that might be reasonably anticipated from neglect.” Hepner v. Southern R. Co., 182 Ga. App. 346, 347 (356 SE2d 30) (1987). And “what particular action a railroad should take to address a given workplace hazard is a question of whether the railroad breached the standard of care,” which is a question for the jury. Zeagler, 293 Ga. at 586 (1) (c), 589 (2).

The jury must also decide issues of causation, and under FELA, the normal rules of causation are relaxed:

[T]he test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence.

Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 506 (77 SCt 443, 1 LE2d 493) (1957) (footnote omitted); see also Zeagler, 293 Ga. at 587 (2).

Here, there was some evidence from which a jury could conclude that Central breached its duty to keep the workplace safe and some evidence that the breach caused Ross’s injury The large, deep ditch was immediately adjacent to the work area, it was partially obscured by weeds and vegetation, it was not marked in any way as a hazardous area, it was not protected by a chain or rail of any sort, and the area was not well lit. Thus, some evidence was presented that Central failed to keep the workplace safe, and at least slight evidence was presented to show that Central’s failure caused Ross’s fall. See generally Hepner, 182 Ga. App. at 348, n. 1 (“Under [FELA], an employee couldbe negligent 99.99 percent and the employer only 00.01 percent negligent and the employee would still be entitled to recover in proportion.”) (citations and punctuation omitted). The trial court therefore did not err in denying Central’s motions for judgment as a matter of law on this ground.

2. In two enumerations of error, Central contends the trial court erred by allowing Ross to introduce evidence of railroad-scale wages and benefits in support of his claim for economic damages and by allowing Ross to introduce evidence that he had been disciplined unfairly and eventually terminated in retaliation for reporting the injury. We disagree and find that Ross was properly allowed to introduce railroad-scale wages and benefits as a part of his claim for lost earning capacity, and Central’s own actions induced the introduction of Ross’s version of why he was terminated.

Prior to trial, Central moved in limine to exclude evidence of railroad-scale wages and benefits given that Ross had been terminated one year after the accident for reasons allegedly unrelated to the accident. Central argued that under the circumstances, Ross should not be allowed to argue that he was entitled to railroad wages and benefits, which are supposedly higher than average, because his termination foreclosed any possibility that he would have continued to work for Central, or, presumably, for any railroad, until retirement if the injury had not occurred. Alternatively, Central argued that if Ross

is allowed to offer evidence of railroad wages and benefits in support of his lost earnings claim, then [Central] . . . should be allowed to rebut that evidence with plaintiff’s complete disciplinary history to show that plaintiff was not well-suited for railroad work and would not likely have continued as a railroad employee if the incident had not occurred.

Central argued that Ross’s disciplinary history was relevant to show that his lost earning capacity was due to factors other than the injury

At the hearing on these issues, the trial court ruled that it would allow Ross to present evidence of what he would have earned had he remained employed or employable by the railroad. The court also held that Ross’s disciplinary record would be admissible, as requested by Central, to show that Ross was terminated for a reason unrelated to the injury but that Ross would therefore be allowed to rebut Central’s premise by asking questions with a “good-faith basis” based on “competent evidence” as to whether Ross’s dismissal was pretextual, i.e., whether Central terminated him because of his injury At trial, the court clarified that all such evidence was “proper only to the extent that an argument can be made with regard to lost future earnings[,] whether or not he could have continued to work for the railroad and earn that money.”

Consequently, evidence was presented to show that Ross’s employment was marked by repeated rules violations and multiple incidents of discipline and that he was initially terminated within two months of the accident for several reasons including failing timely to report the accident at issue, making false and conflicting statements regarding the incident, and falsifying his claim of personal injury. Central thereafter agreed to reinstate Ross, and he returned to work in March 2006. But in October 2006, he was again terminated for allegedly violating other company rules and instructions and for mishandling several rail cars. Finally, Ross presented some evidence suggesting that after he returned to work following his initial termination he was accused of falsifying his injury and was treated more harshly for minor work infractions.

The standard of review for the admission of evidence is well established:

A trial court’s ruling that evidence is relevant will not be reversed absent abuse of discretion. 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. 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. 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. Even evidence of doubtful relevancy should be admitted and its weight left to the jurors. And if evidence is competent for any purpose, its admission does not constitute error.

Smith v. CSX Transp., 325 Ga. App. 314, 318 (751 SE2d 604) (2013) (citations and punctuation omitted).

(a) Central first argues that the trial court erred by allowing Ross to introduce evidence of railroad-scale wages and fringe benefits. Central asserts that it was undisputed that Ross was fired for reasons independent from his injury and that he therefore could never have returned to work for Central or any railroad, regardless of the condition of his knee. We hold that the trial court did not abuse its discretion by allowing Ross to introduce evidence of railroad wages and benefits.

“[A] FELA plaintiff can recover special damages for past and future lost wages and medical expenses, as well as general damages for pain and suffering.” Central of Ga. R. Co. v. Swindle, 260 Ga. 685, 685 (398 SE2d 365) (1990); see also Chaffin v. Union Pacific R. Co., 192 Fed. Appx. 739, 748 (2) (10th Cir. 2006) (“FELA entitles a claimant to the difference between what he was able to earn prior to his injury and what he . . . could have earned thereafter.”) (citation and punctuation omitted); Baker v. Baltimore & Ohio R. Co., 502 F2d 638, 644 (6th Cir. 1974) (“we start from the proposition that Appellee was entitled to recover for any loss of earning power suffered because of Appellant’s negligence”).

In proving these damages, FELA plaintiffs are authorized to introduce evidence of their railroad wages in connection with proving future earnings when relevant to show what they would have earned had they not been injured. For example, in Hall v. Norfolk Southern R. Co., 829 FSupp. 1571, 1582 (III) (A) (4) (N.D. Ga. 1993), the railroad argued that the plaintiff could not recover lost railroad wages because he had been dismissed from the railroad shortly after the accident that caused his injuries. The district court noted that a FELA plaintiff is not allowed to present evidence of wages lost because of his dismissal from the railroad. Id. But where the plaintiff argues that “his injuries prevent him from holding a job like the one he held at the time of his injury,” the plaintiff may use “his railroad earnings as a measure of his earning capacity at the time of the accident.” Id. And in Norfolk Southern R. Co. v. Schumpert, 270 Ga. App. 782, 787 (2) (608 SE2d 236) (2004), this Court held that a FELA plaintiff proving future earnings was authorized to “present[ ] evidence of the difference between what he was making with a new employer and what he would have made at [the railroad]” even though he had been “properly fired only eight months after the injury for violating company policies by never reporting the accident and by misrepresenting the reason he had missed work.” Id.

Here, Ross argued that he was entitled to receive the wages that he otherwise would have received if he had not been injured; he was not seeking to recover wages lost as a result of his termination, and the trial court so instructed the jury. Therefore Ross was authorized to introduce evidence of railroad wages and benefits. Accordingly, we find no abuse of discretion in the trial court’s ruling allowing Ross to introduce evidence as to so-called railroad wages. See Hall, 829 FSupp. at 1582 (III) (A) (4) (plaintiff could seek lost railroad wages where he “did not seek to recover for wages lost due to his dismissal”); Schumpert, 270 Ga. App. at 787 (2) (injured FELA plaintiff properly allowed to introduce evidence of railroad wages even though he was properly fired eight months after the injury), cert. denied, 546 U. S. 1025 (126 SCt 663, 163 LE2d 543) (2005).

Central counters that a recent unpublished opinion from an Illinois appellate court holds otherwise:

[Wjhere an unrelated condition, separate and apart from the injury that gave rise to the FELA claim, rendered a railroad employee unable to work in his prior position at the railroad, evidence of lost railroad wages beyond the point of the unrelated condition is not admissible to establish lost future earnings.

Niemann v. Illinois Central R. Co., 2016 WL 283584, at *16 (Ill. App. 2016), citing federal case law. As shown below, the federal cases upon which Niemann relies for this proposition, as well as another case cited by Central, do not support the conclusion that being fired from one railroad job renders an employee unable to work in his former position for another company

The court in Niemann relied on Harris v. Illinois Central R. Co., 58 F3d 1140 (6th Cir. 1995), and Parra v. Atchison, Topeka & Santa Fe R. Co., 787 F2d 507, 508 (10th Cir. 1986). Central also relies on Bonner v. Union Pacific R. Co., 2005 WL 1593635, at *2 (D. Idaho 2005). All three cases are distinguishable. In Harris and Parra, some time after the FELA plaintiff received the injury that prompted the FELA action, but before trial, the plaintiff developed an unrelated medical condition that rendered the plaintiff physically unable to perform work as a railroad employee. Harris, 58 F3d at 1142 (I) (evidence showed that plaintiff had an enlarged heart, not related to the accident, that “would have left him unable to work as a carman... even if there had been no accident”); Parra, 787 F2d at 509 (“[I]t seems improper for plaintiff to be compensated for future wages from heavy labor for which his preexisting congenital back disorder had already disqualified him.”). And in Bonner, the plaintiff was fired because three months after his alleged injury, he was apprehended by police for surreptitiously videotaping two women without clothing through a window at their home at night and lied to the police, claiming that he was videotaping on behalf of his employer in an effort to discredit a fellow employee; the plaintiff also admitted that “he can no longer work for Union Pacific due to a permanent disability unrelated to his termination and his present injuries.” Bonner, 2005 WL 1593635 at *5 (plaintiff also presented no evidence to support calculation of lost potential earnings).

Thus, in two cases, the plaintiff was terminated for a medical condition that would have prevented the plaintiff from working in the railroad industry regardless of the FELA injury. And in the third case, the plaintiff was terminated for criminal behavior, he admitted that he had an unrelated permanent disability, and he failed to present any evidence at all to support a claim of lost potential earnings. Unlike the court in Niemann, we find no reason to extend the rule from these cases to one where the FELA plaintiff was terminated for work-related reasons. In this case, although Central was authorized to argue that Ross did not have good work habits or occupational abilities and that therefore his future earning potential might not be as good as suggested by Ross’s expert witness, see Smith, 325 Ga. App. at 319, there is no undisputed evidence that Ross could not have been hired by another railroad after being fired by Central.

(b) Central also contends that the trial court erred by allowing Ross to introduce evidence that he had been disciplined unfairly and eventually terminated in retaliation for reporting the injury. We find that Central induced any possible error when it asked the court to allow it to introduce evidence of Ross’s disciplinary record in connection with Ross’s attempt to introduce evidence of railroad wages. See Dyals v. Dyals, 281 Ga. 894, 896 (3) (644 SE2d 138) (2007) (appellant “cannot complain of error induced by his conduct” (citation and punctuation omitted)). Central specifically argued that if Ross was allowed to offer evidence of railroad wages and benefits in support of his lost earnings claim, “then [Central] ... should be allowed to rebut that evidence with Plaintiff’s complete disciplinary history to show that plaintiff was not well-suited for railroad work and would not likely have continued as a railroad employee if the incident had not occurred.” After granting Central’s request, the court did not abuse its discretion by allowing Ross to introduce evidence contrary to Central’s evidence.

3. Finally, Central contends that a new trial is required because Ross repeatedly claimed poverty during the trial.

Prior to trial, Ross moved in limine to bar evidence of any financial impact a verdict would have on Central. Central agreed so long as the bar applied to both parties, and the trial court held in limine that the financial status of both parties was irrelevant and inadmissible. Central contends that Ross and his counsel violated the court’s order in the following ways. During his opening statement, Ross’s counsel stated:

Now, Mr. Ross, he has children. . . . And when his daughter comes to him and says, dad, can’t you get a different job. Dad, can’t I have some money to go ... to SCAD, where she’s presently in school. [Ross] has to say, I’m on the couch. I’m doing the best I can.

Ross testified similarly:

Q: And where have you been working in jobs since this injury?
A: Well, ... I got three kids and they constantly wanting stuff. My daughter, you know, when I go and tell her she can’t have something, she don’t understand it. You know, she’s like, you need to get another job, and I’m like, I can’t. So I try to explain that to her.

And during closing argument, Ross’s counsel stated:

Let’s talk about mental anguish. . . . Come with me as my right leg is stretched out because that’s the best I can do after eight days on my feet at Wal-Mart. And come with me as my son comes into the room, and I’m sitting on the green couch, and he says dad, can you teach me to play soccer. . . . Come with me when my daughter comes and asks for the things that daughters ask for. And says, dad, can I have some money for a dress. Dad, can I have some money for education. Dad, I really want that new purse. And my dad’s heart, which wants to give, has to say no. Because my knee won’t let me get a better job and because at the end of the workday, this is the best I can do.

In its order denying Central’s motion for new trial, the trial court stated that it “precluded evidence of financial circumstances based on financial sympathy or impact. In contrast, [Ross’s] testimony described the mental stress that he endured in connection with his relationship with his children and his employment status.” The court concluded that Ross’s mental suffering resulting from the injury was relevant to the case and that the court could not conclude that the challenged statements were only offered to gain sympathy Our review is for abuse of discretion, see Postell v. Hankla, 317 Ga. App. 86, 90 (2) (728 SE2d 886) (2012); Kane v. Cohen, 182 Ga. App. 485, 487 (2) (356 SE2d 94) (1987), and we find none.

“The general rule is that evidence of the wealth or worldly circumstances of a party litigant is never admissible, except in those cases where position or wealth is necessarily involved.” Bailey v. Edmundson, 280 Ga. 528, 534 (6) (630 SE2d 396) (2006) (citation and punctuation omitted). On the other hand,

[e]ven if the plaintiff should produce no evidence from which a jury could determine a pecuniary value for loss of his earning capacity, the courts have approved of including damages for decreased ability to labor as an element of pain and suffering to be measured by the enlightened conscience of the impartial jurors in such a case.

Nat. Upholstery Co. v. Padgett, 108 Ga. App. 857, 860 (1) (134 SE2d 856) (1964); see also Gilbert v. Parks, 140 Ga. App. 550 (1) (b) (231 SE2d 391) (1976) (it is not “error to charge that the loss or impairment of ability to work may cause grief, distress or worry and may be considered by the jury in determining damages for pain and suffering”). For example, our Supreme Court has affirmed that a “plaintiff’s mental distress resulting from his inability to care for his invalid wife and to care for and play with his five children, caused by or growing out of his bodily injury, was a proper element of damage — pain and suffering.” Underwood v. Atlanta & West Point R. Co., 105 Ga. App. 340, 351 (2) (a) (124 SE2d 758) (1962), rev’dinpart on other grounds, 218 Ga. 193 (1) (126 SE2d 785) (1962). Compare Warren v. Ballard, 266 Ga. 408, 410 (2) (467 SE2d 891) (1996) (“anxiety, agony, or worry over the payment of medical bills” is not a proper element of damages). And “evidence inadmissible for one purpose may be relevant and admissible for another purpose.” Shivers v. Webster, 224 Ga. App. 254, 256 (1) (480 SE2d 304) (1997).

Here, testimony had already been admitted showing that sometime after his injury, Ross had taken a job that paid significantly less than he had been receiving at the railroad. Then, in the testimony at issue in this enumeration, Ross testified to the pain and suffering arising from his injury associated with his relationship with his children, including having to listen to his daughter’s questions about why he could not get a better job or pay for more things. This evidence of grief and distress was admissible as an element of Ross’s claim for pain and suffering. We therefore conclude that the trial court did not abuse its discretion in determining that the challenged testimony was relevant to Ross’s claim for pain and suffering.

Decided June 23, 2017.

Hall, Bloch, Garland & Meyer, J. Steven Stewart, Walker S. Stewart; Holland & Knight, Laurie W. Daniel, for appellant.

Mahoney & Cole, Thomas J. Mahoney, Jr.; Harrell & Harrell, James R. Holland II, for appellee.

For the reasons stated above, we affirm.

Judgment affirmed.

Doyle, C. J., and Reese, J., concur.

       As specifically provided in FELA:
      Every common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.
      45 USC § 51.

       Ross’s termination was upheld by a public law board (PLB).
      APLB ... is essentially an arbitral tribunal that revie ws the outcome of a railroad’s investigative hearing to ascertain whether the result is consonant with the terms of the [collective bargaining agreement] between the railroad and its union employees.

        Kulavic v. Chicago & Illinois Midland R. Co., 1 F3d 507, 513 (2) (7th Cir. 1993).

       Although Central induced the court to admit evidence of Ross’s termination, the trial court instructed the jury that the case did not include a claim arising from Ross’s termination of employment and that the jury should not consider evidence regarding disciplinary issues with respect to an award of damages but only as to how termination of employment might bear on the calculation of lost earnings.

       Central did not object following any of the three statements, but “[hjaving obtained a ruling in limine excluding such evidence, it was not necessary for appellant to raise an objection at trial when the evidence was introduced in order to preserve this issue for appellate review.” Lewis v. State, 279 Ga. 69, 73 (5) n. 17 (608 SE2d 602) (2005).