Ezor v. Thompson

526 S.E.2d 609, 241 Ga. App. 275
CourtCourt of Appeals of Georgia
DecidedMay 1, 2000
DocketA99A1255
StatusPublished
Cited by33 cases

This text of 526 S.E.2d 609 (Ezor v. Thompson) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ezor v. Thompson, 526 S.E.2d 609, 241 Ga. App. 275 (Ga. Ct. App. 2000).

Opinions

Pope, Presiding Judge.

Elisa Ezor appeals the trial court’s order granting summary judgment to the defendants, Keith Thompson, M.D., Emory Clinic, Inc., and Emory Vision Correction Center, Inc., L.P., in the underlying medical malpractice action.1 Ezor contends that the trial court erred by applying the self-contradictory testimony rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986) to the testimony of her expert. We agree and reverse.

Ezor contends that Dr. Thompson committed medical malpractice because her visual acuity was diminished after Dr. Thompson [276]*276performed five operations on her eyes over three months. Ezor attached Dr. James C. Hays’s affidavit to her complaint in compliance with OCGA § 9-11-9.1. In his affidavit, Dr. Hays stated that performing multiple automated lamellar keratoplasty (“ALK”) and radial keratotomy operations in such quick succession violated the applicable standard of care.

In his deposition Dr. Hays stated that the timing of the operations was against “conventional wisdom” and the “party line.” Dr. Hays added that there was a possibility that Dr. Thompson was “way out ahead” of his peers. He further deposed that the second procedure, an ALK, was performed too soon after the first but that he was “not sure” that Ezor was injured as a result. In a second affidavit filed after his deposition and in response to defendants’ motion for summary judgment, Dr. Hays stated that following his deposition he had examined and treated Ezor. He then reaffirmed his opinion that Dr. Thompson had violated the standard of care by not waiting three months before performing a subsequent operation on Ezor’s eyes and that such violation caused permanent injury to Ezor’s eyes.

The trial court determined that Dr. Hays’s deposition contradicted his original affidavit and that his second affidavit submitted after his deposition did not adequately explain the contradiction. Reasoning that Dr. Hays’s contradictory testimony was the only evidence in support of Ezor’s malpractice claim, the trial court applied Prophecy and granted summary judgment to the defendants.

1. This Court has been inconsistent when deciding whether to apply the self-contradictory testimony rule to expert witnesses. At least six of our cases have either applied or refused to apply this rule to experts, thereby creating a conflict in the law.2 In 1995, this Court twice held that the self-contradictory testimony rule does not apply to an expert’s affidavit. Ewers v. Cooper, 217 Ga. App. 434 (457 SE2d 705) (1995); Flanagan v. Riverside Military Academy, 218 Ga. App. 123 (460 SE2d 824) (1995). Ewers explained that an expert’s affidavit is not the testimony of a party, and therefore a contradiction between that expert’s testimony and the party’s legal position was not necessarily fatal to the party’s claims. 217 Ga. App. at 435. Flanagan held that an expert was not a party and therefore the rule did not apply. 218 Ga. App. at 126. In 1998, we again held that the self-contradictory testimony rule did not apply to the testimony of a non-party wit[277]*277ness, which in that case was an expert. Sawyer v. DeKalb Med. Center, 234 Ga. App. 56-57 (2) (506 SE2d 197) (1998).

Three months after Flanagan, without analysis or explanation, and without citation to either Ewers or Flanagan, this Court in Ford v. Dove, 218 Ga. App. 828 (1) (463 SE2d 351) (1995), applied the rule to an expert witness for the first time. Two other cases simply followed Ford. Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608, 609 (484 SE2d 257) (1997); Tuten v. Costrini, 238 Ga. App. 350, 353-354 (2) (a) (518 SE2d 751) (1997).

Thus, this Court must now resolve the question of whether the self-contradictory testimony rule should be extended to expert witnesses.

Our Supreme Court has never addressed this precise issue. Although it denied certiorari in three cases applying the Prophecy rule to expert witnesses, “ ‘[t]he denial of a writ of certiorari shall not be taken as an adjudication that the decision or judgment of the Court of Appeals is correct.’ ” (Citation omitted.) Adair v. Traco Division, 192 Ga. 59, 65-66 (14 SE2d 466) (1941). See also Ga. Const. of 1983, Art. VI, Sec. VI, Par. V.

But our Supreme Court has consistently enunciated different rules for handling the self-contradictory testimony of a party witness and a non-party witness. In 1895, when the Court established the self-contradictory testimony rule, it recognized that while a party has no power to control his witnesses’ testimony:

Where a party calls witnesses who conflict with each other in their sworn statements, he is not to be held responsible for the contradictions among them, for it is not within his power to prevent their occurrence; and a reviewing court will generally give to a party the benefit of the most favorable version of such testimony as a whole which the jury would be authorized to accept.

Western &c. R. Co. v. Evans, 96 Ga. 481, 486 (23 SE 494) (1895). The Court went on to explain, however, that while a party can control his or her own testimony, “a party testifying in his own favor has no right to be intentionally or deliberately self-contradictory; and, if he is so, the courts are fully justified in taking against him that version of his testimony which is most unfavorable to him.” Id.

In 1975, the Supreme Court made plain that the self-contradictory testimony rule applies to parties and not non-party witnesses. Miller v. Douglas, 235 Ga. 222, 223 (219 SE2d 144) (1975).

[The] holding [that] “the testimony of a party who offers himself as a witness in his own behalf is to be construed [278]*278most strongly against him,” passing upon a motion for summary judgment, does not apply to contradictory statements by witnesses who are not parties to the litigation.

Id. at 223. And the court has been clear that it was applying the rule to a “party” or “party-witness.” Prophecy, 256 Ga. at 27-30. Shiver v. Norfolk-Southern R. Co., 269 Ga. 168, 169 (496 SE2d 903) (1998); Korey v. BellSouth Telecommunications, 269 Ga. 108 (498 SE2d 519) (1998); Hudgens v. Broomberg, 262 Ga. 271 (416 SE2d 287) (1992).

This Court also has held that the self-contradictory testimony rule does not apply to non-party lay witnesses. In 1934, we held that the rule “applies only to the testimony of a party to the case, and not to the testimony of a witness who is not such a party.” (Emphasis omitted.) Henry v. Nashville Chattanooga &c. R. Co., 50 Ga. App. 49, 50 (1) (176 SE 906) (1934). See also Painter v. Continental Ins. Co., 233 Ga. App. 436, 437-438 (1) (504 SE2d 285) (1998); Allen v. King Plow Co., 227 Ga. App. 795, 799 (4) (490 SE2d 457) (1997); English v. Crenshaw Supply Co., 193 Ga. App. 354, 359 (2) (387 SE2d 628) (1989).

In light of this long-standing precedent, we find no reason to apply a different rule to expert non-party witnesses. A party has no greater power to prevent contradictions between experts or within an expert’s testimony than with regard to fact witnesses.

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526 S.E.2d 609, 241 Ga. App. 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ezor-v-thompson-gactapp-2000.