DEBORAH L. PENDER v. SHATUL L. PARIKH

• Court: Court of Appeals of Georgia
• Decided: January 22, 2026
• Docket: A25A1860
• Status: Published

Opinion

FOURTH DIVISION DILLARD, P. J., MERCIER, J., and SENIOR JUDGE FULLER

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

January 22, 2026

In the Court of Appeals of Georgia A25A1860. PENDER v. PARIKH et al.

FULLER, Senior Judge.

In this action for medical malpractice, a jury found in favor of defendants Shatul

Parikh, M.D., and a surgical practice in which he is a shareholder, Northwest ENT

Associates, P.C. Plaintiff Deborah Pender appeals from the final judgment entered in

favor of the defendants, contending that the trial court erred when it barred her from

cross-examining Dr. Parikh about a federal investigation into Northwest’s practices.

For the reasons that follow, we conclude that Pender has not shown that the trial court

abused its discretion in that regard, and we therefore affirm.

On appeal following a jury trial, we view the evidence in the light most favorable

to the jury’s verdict. Moore v. Jackson, 343 Ga. App. 532, 532 (807 SE2d 495) (2017). So viewed, the record shows that, in September 2020, Dr. Parikh performed a rigid

endoscopic surgical procedure on Pender to address a condition known as Zenker’s

diverticulum, which is a type of hernia or pouch between one’s esophagus and spine

where food can collect, making swallowing difficult. Pender previously had undergone

neck surgery, which limited her ability to extend her neck backwards. Before her

surgery with Dr. Parikh, he told her that the prior procedure “might make [the

current surgery] more difficult.” He further informed her that risks associated with

the procedure include esophageal perforation. Dr. Parikh also told Pender that he

might have to abort the procedure if he was unable to access the location at issue. Dr.

Parikh ultimately aborted the procedure for that reason.

Two days later, Pender visited an emergency room, complaining of fever-like

symptoms and difficulty breathing. Hospital personnel discovered a perforation in her

esophagus, for which she was hospitalized for approximately 20 days. In addition,

another doctor subsequently diagnosed a scar on one of Pender’s vocal cords.

In 2021, Pender sued Dr. Parikh and Northwest for medical malpractice. She

alleged that Dr. Parikh’s negligent treatment caused her perforated esophagus, as well

as hoarseness, a change in the pitch of her voice, and an inability to make herself

2 heard, and that Northwest was vicariously liable for Dr. Parikh’s negligence. The case

proceeded to trial, during which a physician testified for Pender that Dr. Parikh

violated the standard of care in his evaluation and treatment of her, while another

physician testified for the defense that Dr. Parikh had complied with the applicable

standard of care. The jury ultimately found in favor of the defendants. Pender now

appeals from the final judgment entered on the jury’s verdict.

In two related arguments, Pender contends that the trial court erred when it:

(i) denied her motion in limine seeking to cross-examine Dr. Parikh about a federal

investigation into Northwest concerning alleged violations of the False Claims Act,

31 USC § 3729 et seq.; and (ii) denied her mid-trial renewed request to cross-examine

Dr. Parikh about that investigation after he purportedly “opened the door” to such

evidence by contradicting other witnesses’ testimony regarding Pender’s surgery and

boasting about his meticulous practice and his surgery center’s credentials. We

discern no abuse of discretion by the trial court.

The record shows that, in a 2018 press release, the United States Department

of Justice (“DOJ”) announced that Northwest had entered into a civil settlement in

which it agreed to pay approximately $1.2 million to resolve allegations that it violated

3 the False Claims Act by submitting claims to several federal health benefit plans

between March 2011 and March 2012 for sinus dilation procedures in which it re-used

catheters intended for single use only. The press release stated that, pursuant to a

Non-Prosecution Agreement (“NPA”), Northwest had “accepted responsibility for

its actions” and entered into a “three-year Integrity Agreement” under which

Northwest’s claims were to be reviewed for “medical necessity, accurate coding, and

safe and appropriate use of medical devices.” The settlement agreement referred to

in the press release — which was entered into between Northwest and the DOJ (on

behalf of several federal entities) “[t]o avoid the delay, uncertainty, inconvenience,

and expense” of litigating the claims at issue — was signed by four Northwest

physician-partners, including Dr. Parikh. Aside from the signature lines on the

agreement, neither the press release nor the agreement mentioned any individual

healthcare providers by name.

Before trial, Pender moved in limine to cross-examine Dr. Parikh about the

NPA, which, she argued, “constitutes allowable evidence of his prior acts of

untruthfulness” pursuant to OCGA § 24-6-608 (“Rule 608”). The defendants, in

4 turn, moved in limine to exclude all evidence of the NPA. The trial court denied

Pender’s motion and granted the defendants’ motion.

At trial, Pender testified that, when she awoke after surgery, she “felt as bad as

[she has] ever felt,” and she was experiencing pain from her neck — which was

“really swollen” — “down to the upper part of [her] chest.” Pender’s roommate Jane

Stegall, who drove her to and from the surgery, visited her in the recovery room.

Stegall testified that, when she arrived, Pender’s “neck was swollen out even with her

jaws.” According to both Pender and Stegall, Dr. Parikh said that “he tried really hard

to get the job done” and that he “pushed really hard and kept at it” but decided to

stop when “he saw blood.” Both witnesses also testified that Dr. Parikh told Stegall

“that he hit [Pender’s] vocal cords.” The doctor who diagnosed Pender’s vocal cord

scar several months later told her that it was “most likely less than a year old.”

Dr. Parikh repeatedly testified at trial that he saw no indications during or

immediately after Pender’s procedure that he had perforated her esophagus, and he

opined that the perforation occurred after she went home following her surgery.

According to Dr. Parikh, he instructed Pender to go to the hospital when either

Pender or Stegall called him after the surgery to report that Pender swallowed

5 something and felt a “pop,” after which her neck then began to swell. He also testified

that it would have been “impossible” for him to have made direct contact with

Pender’s vocal cords during her surgery, because (i) an endotracheal tube already

occupied that space and (ii) multiple persons in the operating room would have alerted

each other if that happened. Dr. Parikh further testified that, at times, intubation can

cause trauma to patients’ vocal cords, even when no problems have been reported

with the intubation. He denied both that Pender reported chest pain after the

procedure and that he told Pender or Stegall that he hit Pender’s vocal cords, that he

pushed really hard, or that he stopped when he saw blood.

Dr. Parikh also testified about the “really good outcomes” and “success rates”

he has had treating Zenker’s diverticulum and about how his “whole career is based

on being careful and thoughtful and meticulous and very conscientious and

conservative.” In addition, he highlighted that his surgery center is certified by

6 “JCAHO,”1 which, he testified, is “the highest credentialing of all hospital surgery

centers,” and that the center is “pretty rigid” as to rules.

Following Dr. Parikh’s direct examination, Pender’s counsel asked the trial

court to revisit its ruling barring cross-examination about the NPA. Counsel argued

that Dr. Parikh had “opened the door” to such evidence by testifying about both the

“meticulous and thoughtful” level of care he provides and the surgery center’s

adherence to JCAHO rules and regulations. The court upheld its prior ruling.

Pender argues on appeal that the trial court erred when it barred her from cross-

examining Dr. Parikh about the NPA under Rule 608(b), which provides, in relevant

part:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than a conviction of a crime as provided in Code Section 24-6-609, or conduct indicative of the witness’s bias toward a party may not be proved by extrinsic evidence. Such instances may however, in the

1 “JCAHO” stands for “the Joint Commission on Accreditation of Healthcare Organizations,” a nonprofit Illinois corporation that, in certain circumstances, plays a role in accreditation for the licensing of healthcare facilities. See Ga. Hosp. Ass’n v. Ledbetter, 260 Ga. 477, 477 (396 SE2d 488) (1990). According to Pender, the JCAHO “evaluates and accredits healthcare organizations to ensure compliance with applicable standards of quality and patient safety.” 7 discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness:

(1) Concerning the witness’s character for truthfulness or untruthfulness . . . .

OCGA § 24-6-608(b).

Thus, “[u]nder the express language of the statute, attacking a witness’s

character for truthfulness may not be done through the use of extrinsic evidence . . . .”

Strong v. State, 376 Ga. App. 431, 433 (919 SE2d 104) (2025). A trial court may,

however, “allow questioning about specific instances of conduct by a witness on cross-

examination, if the conduct is probative of the witness’s character for truthfulness or

untruthfulness.” Cent. Ga. Women’s Health Ctr. v. Dean, 342 Ga. App. 127, 140(2)

(800 SE2d 594) (2017). To be admissible under this provision, “the specific instances

of conduct must involve acts probative of untruthfulness, including misconduct such

as perjury, fraud, swindling, forgery, bribery, and embezzlement.” Id. (quotation

marks omitted). Because Rule 608(b) “places the decision whether to admit specific

instances of conduct within the trial court’s discretion, we will reverse the trial court’s

ruling only on a clear abuse of that discretion.” Gaskin v. State, 334 Ga. App. 758,

762(1)(a) (780 SE2d 426) (2015).

8 “Trial court judges are given wide latitude to impose restrictions on cross-

examination based on concerns about prejudice, confusion of the issues, or

interrogation that is only marginally relevant.” Strong, 376 Ga. App. at 433. In that

vein, even relevant evidence may be excluded under OCGA § 24-4-403 (“Rule 403”)

“if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.”

The major function of Rule 403 is to exclude matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect. Thus, the exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly. In that regard, an appellate court reviewing issues under Rule 403 must look at the evidence in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact.

Wright v. State, 362 Ga. App. 867, 878(2) (870 SE2d 484) (2022) (citation modified).

“The probative value of evidence is a combination of its logical force to prove

a point and the need at trial for evidence on that point.” Harris v. State, 314 Ga. 238,

263(3)(a) (875 SE2d 659) (2022) (quotation marks omitted).

9 Generally speaking, the greater the tendency to make the existence of a fact more or less probable, the greater the probative value. And the extent to which evidence tends to make the existence of a fact more or less probable depends significantly on the quality of the evidence and the strength of its logical connection to the fact for which it is offered.

Id. (quotation marks omitted).

As with Rule 608(b), “application of the Rule 403 test is a matter committed

principally to the discretion of the trial courts.” Harris, 314 Ga. at 264(3)(a)

(quotation marks omitted). That is because the Rule 403 balancing test is a

quintessentially fact-sensitive enterprise, and the trial judge is in the best position to make such factbound assessments. . . . Only rarely — and in extraordinarily compelling circumstances — will we, from the vista of a cold appellate record, reverse a [trial] court’s on-the-spot judgment concerning the relative weighing of probative value and unfair effect.

Rivers v. K-Mart Corp., 329 Ga. App. 495, 497(1) (765 SE2d 671) (2014) (quotation

marks omitted). Thus, under the abuse-of-discretion standard,

the trial court’s conclusions will be affirmed so long as they are in conformity with the governing legal principles, based on correct facts that are relevant to determining whether any legal requirements are satisfied, and within the range of possible outcomes in which there could be room for reasonable and experienced minds to differ.

10 Premier Pediatric Providers v. Kennesaw Pediatrics, 318 Ga. 350, 355(2) (898 SE2d 481)

(2024) (citation modified).

Here, pretermitting whether the trial court properly ruled on the motions in

limine,2 we discern no abuse of discretion in the court’s subsequent mid-trial ruling

barring Pender from cross-examining Dr. Parikh about the NPA. Regardless of

whether Dr. Parikh may have “opened the door” to such impeachment by

contradicting Pender’s and Stegall’s testimony or by testifying about his good

outcomes, the meticulousness of his practice, or his surgery center’s credentials, the

NPA sheds little-to-no light on Dr. Parikh’s credibility or dishonesty, as it neither

contains any admission of wrongdoing by Northwest3 nor — more importantly —

2 See, e.g., The Kroger Co. v. Walters, 319 Ga. App. 52, 57(2) (735 SE2d 99) (2012) (“A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.”(quotation marks omitted)). 3 We reject Pender’s argument that an admission of wrongdoing by Northwest may be inferred from either a statement in the DOJ press release that Northwest “accepted responsibility for its actions” or a provision in the related settlement agreement identifying approximately $400,000 of the total $1.2 million settlement as “restitution.” Neither statement contains sufficient context to show that Northwest admitted any wrongdoing, much less the extent of any such purported wrongdoing. For the same reason, Pender’s claim that Northwest’s failure to deny wrongdoing in the settlement agreement shows such wrongdoing simply assumes what it seeks to establish and ignores her burden — as the proponent of the evidence at issue — to 11 involves any allegations of conduct probative of truthfulness engaged in by him

specifically.4 See OCGA § 24-4-401 (evidence is relevant if it has “any tendency to

make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence”);

Williams v. State, 332 Ga. App. 546, 549(1)(b) (774 SE2d 126) (2015) (concluding that

“a generalized statement” that “police can and will lie” was not a proper subject for

cross-examination of a police officer under Rule 608(b), because it was “not probative

of [that particular officer]’s own credibility in testifying under oath”(quotation marks

omitted)). See also Allen v. State, 345 Ga. App. 599, 610(6) (814 SE2d 740) (2018)

(finding no error in a ruling barring certain cross-examination under Rule 608(b)

where the prior conduct at issue was not “relevant, whether directly or inferentially,

to the [witness]’s character for truthfulness”). See also generally Campbell v. State,

establish its admissibility. See, e.g., Wilson v. State, 312 Ga. 174, 185(1)(c) (860 SE2d 485) (2021). And even if the NPA arguably could be read to imply an admission of wrongdoing by Northwest, it does not necessarily follow that Dr. Parikh’s testimony about the surgery center’s compliance with credentialing requirements “opened the door” to any such evidence, as Northwest and the surgery center are separate entities. 4 Because Pender’s claim against Northwest is premised entirely on Dr. Parikh’s alleged negligence — and not on any acts engaged in by Northwest itself — the issue of credibility in this case necessarily pertains only to Dr. Parikh. 12 362 Ga. App. 337, 340–41(2) (868 SE2d 471) (2022) (finding no abuse of discretion

in excluding as irrelevant impeachment testimony under Rule 608(b), where the

connection between the testimony about “collateral” matters and the issues at trial

was “extremely attenuated”). Compare Dean, 342 Ga. App. at 139–42(2) (holding

that the trial court did not abuse its discretion when it permitted cross-examination

of a medical malpractice defendant about an inaccurate physician progress note

concerning his interactions with one of the plaintiffs, because the note was probative

of the doctor’s character for truthfulness).

Moreover, the danger of unfair prejudice to Dr. Parikh resulting from cross-

examination about this largely collateral issue would have been high, as it would have

invited the jury to speculate that, because his practice may have engaged in

misconduct before, he is more likely to have done so here. See Wright, 362 Ga. App.

at 884(2)(b)(ii) (explaining that the “misuse [of] evidence for improper propensity

purposes” is “the very essence of unfair prejudice”). Under these circumstances, the

trial court was entitled to conclude that evidence concerning the NPA would have had

“scant . . . probative force,” while its prejudicial effect would have been significant.

Id. at 878(2) (quotation marks omitted). See also generally Williams v. State, 328 Ga.

13 App. 876, 880(1) (763 SE2d 261) (2014) (a proper application of abuse-of-discretion

review recognizes that there is a “range of possible conclusions the trial judge may

reach” and that we often will affirm a ruling under this standard “even though we

would have gone the other way had it been our call” (quotation marks omitted));

McDonald v. Garden Svcs., 163 Ga. App. 851, 853 (295 SE2d 551) (1982) (absent an

abuse of discretion, we will not substitute our judgment for the trial court’s, even if

individual members of this Court may have reached a different conclusion).

Pender also argues that Dr. Parikh is to blame for the absence of evidence of his

participation in the wrongdoing alleged in the NPA, because he refused to answer any

questions on that topic when she deposed him. In a related claim, she maintains that

“[t]he jury was entitled to hear about Dr. Parikh’s refusal to . . . answer those

questions, and to draw an adverse inference therefrom.” Because Pender was the

proponent of the evidence of the settlement agreement, she bore the burden of

establishing its admissibility — i.e., that it was relevant and that its probative value

was not substantially outweighed by the danger of unfair prejudice. See, e.g., Wilson

v. State, 312 Ga. 174, 185(1)(c) (860 SE2d 485) (2021). But the record contains no

indication that Pender asked the trial court to compel answers to her deposition

14 questions, absent which she can only speculate about how Dr. Parikh would have

testified, which is insufficient to meet her burden on appeal. And Pender’s claim that

the jury was entitled to draw an adverse inference from Dr. Parikh’s refusal to answer

questions about his participation in the alleged wrongdoing assumes what it seeks to

establish: that the trial court should have allowed her to ask questions about that topic

in the first place.

For the above reasons, Pender has not met her burden of showing that the trial

court abused its broad discretion when it barred her at trial from cross-examining

Dr. Parikh about the NPA, regardless of whether the court properly adjudicated the

parties’ prior competing motions in limine. We therefore affirm the judgment of the

trial court.

We do not authorize the reporting of this opinion because it does not announce

a new rule or policy or involve an interpretation of law that is not already precedent.

See Ga. Ct. App. R. 33.2(b), 34.

Judgment affirmed. Dillard, P. J., and Mercier, J., concur.