FOURTH DIVISION DOYLE, P. J., MILLER and DILLARD, JJ.
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. http://www.gaappeals.us/rules/
March 16, 2015
In the Court of Appeals of Georgia A14A1854. HAND et al. v. SOUTH GEORGIA UROLOGY CENTER, P.C. et al.
DILLARD, Judge.
In this civil action, George and Betty Hand sued Dr. Gilbert Gonzalez and his
practice group, South Georgia Urology Center, P.C. (collectively “defendants”), for
damages they allegedly suffered as a result of Dr. Gonzalez’s medical malpractice.
Following a jury verdict and judgment in favor of defendants, the Hands appeal,
arguing that the trial court erred in (1) excluding impeachment evidence, (2) failing
to instruct the jury on the law pertaining to spoliation of evidence, (3) prohibiting
cross-examination of Dr. Gonzalez regarding the past suspension of his medical
license, and (4) finding that sufficient evidence supported the jury’s verdict. For the
reasons noted infra, we agree that the trial court erred in excluding impeachment evidence, and therefore, reverse the trial court’s ruling in that regard and remand the
case for a new trial.
Construed in favor of the jury’s verdict,1 the evidence shows that in late 2005,
Dr. Gonzalez, a urologist, diagnosed George Hand as having an enlarged prostate.
And after discussing various treatment options, Dr. Gonzalez ultimately
recommended transurethral microwave thermotherapy, using a Targis System device
manufactured by Urologix, Inc. In this procedure, the physician places the Targis
device’s catheter, housing a microwave antenna, into the patient’s urethra near the
prostate gland and inserts the device’s rectal thermometer into the patient’s rectum
directly adjacent to the prostate gland. The antenna then delivers microwave energy
into the patient’s prostate, causing cellular breakdown that leads to a reduction in the
size of the prostate. During the procedure, the rectal thermometer monitors the
temperature of the prostate gland and automatically halts the procedure if the
temperature exceeds acceptable levels.
Based on Dr. Gonzalez’s recommendation, Hand consented to the microwave
thermotherapy. Consequently, on January 19, 2006, Hand went to Dr. Gonzalez’s
offices, where one of the nurses prepped him and then inserted the Targis device’s
1 See, e.g., Horton v. Hendrix, 291 Ga. App. 416, 416 (662 SE2d 227) (2008).
2 catheter into Hand’s urethra and the rectal thermometer into his rectum. After Dr.
Gonzalez checked the placement of both insertions, he activated the device.
During the procedure, Hand informed Dr. Gonzalez’s assistants that he was
experiencing a considerable amount of pain. But the device’s rectal thermometer
never indicated that the temperature exceeded safe levels, and Hand never requested
that the assistants stop the treatment. Nearly 45 minutes later, the procedure
concluded with no apparent complications, and Dr. Gonzalez sent Hand home to
recuperate.
After resting for approximately two weeks following the procedure, Hand was
still experiencing discomfort, but he nevertheless attempted to return to his job as a
truck driver. However, on his first day back, Hand noticed that he discharged urine
from his rectum when trying to use the bathroom. Almost immediately, Hand
contacted Dr. Gonzalez, who quickly saw him on February 10, 2006, and determined
that the microwave thermotherapy procedure had burned a hole between Hand’s
rectal and urethral tissues, causing what is known as a rectal-urethra fistula. A short
time later, Hand was admitted to the hospital for surgery to repair the fistula, and over
the course of the next couple of years, he underwent numerous surgeries and
procedures to treat the damage and complications resulting from the injury.
3 In 2008, Hand and his wife filed a complaint against Dr. Gonzalez and his
practice group, alleging that Dr. Gonzalez breached the standard of medical care in
treating Hand and that this breach resulted in serious injuries. Specifically, the Hands
claim that Dr. Gonzalez failed to ensure that the Targis device’s rectal thermometer
was properly inserted near Hand’s prostate gland prior to the microwave
thermotherapy procedure and, thus, the thermometer did not indicate that Hand’s
urethral and rectal tissue were being subjected to dangerous temperature levels.
Defendants then filed an answer, and a lengthy discovery period ensued.
During discovery, the Hands’ counsel deposed Dr. Gonzalez, who testified that
he did not breach the standard of medical care in his treatment of Hand. Dr. Gonzalez
further testified that he believed the Targis device malfunctioned during Hand’s
treatment and that this malfunction resulted in the burns to Hand’s tissue. Dr.
Gonzalez added that he believed he had attempted to perform microwave
thermotherapy treatment once or twice after Hand’s procedure, but the device would
not operate properly. Then, after learning of Hand’s injury, he “lost faith” in the
Targis device and stopped using it completely by late February or early March 2006.
A jury trial commenced on April 26, 2013, during which the Hands presented
evidence that Dr. Gonzalez breached the standard of medical care. Defendants
4 presented evidence that Dr. Gonzalez adhered to the standard of medical care,
including expert testimony supporting his theory that the Targis device malfunctioned
and caused Hand’s injury. The trial concluded on May 3, 2013, with the jury
rendering a verdict in favor of the defendants. One week later, the trial court affirmed
the verdict and issued an order entering judgment. Subsequently, the Hands filed a
motion for new trial, which the trial court denied after conducting a hearing. This
appeal follows.
1. The Hands contend that the trial court erred in excluding evidence that was
relevant to the impeachment of Dr. Gonzalez. We agree.
It is well established that the admission of evidence is “within the sound
discretion of the trial court and appellate courts will not interfere absent abuse of that
discretion.”2 But it is likewise well established that evidence having a tendency to
establish facts at issue is “relevant and admissible, and no matter how slight the
probative value, our law favors admission of relevant evidence.”3 With these guiding
principles in mind, we turn now to the Hands’ specific claim of error.
2 City of Atlanta v. Bennett, 322 Ga. App. 726, 727 (1) (746 Ga. App. 198) (2013) (punctuation omitted). 3 Id. at 728 (1) (punctuation omitted).
5 Despite Dr. Gonzalez’s deposition testimony (mentioned supra), during the
course of discovery, the Hands never requested to inspect the Targis device used to
treat Hand. However, a few weeks before trial was scheduled to begin, the Hands
served Dr. Gonzalez with a subpoena duces tecum, requesting that the device be
brought to trial solely for demonstrative purposes. And at the start of trial, the Targis
device that the parties assumed to be the device used to treat Hand was indeed
brought to the courtroom. Later, during a break in the proceedings, and after the
Hands rested, the Hands’ counsel activated the power on the Targis device and
discovered reports in the form of data on the device, indicating that, contrary to his
deposition testimony, Dr. Gonzalez used the device to treat six other patients over the
course of several months after he determined that Hand suffered injuries as a result
of the microwave thermotherapy procedure. The Hands’ counsel immediately brought
this information to the trial court’s attention and requested, inter alia, that the data be
printed out and admitted as impeachment evidence. But focusing on the fact that the
Hands’ counsel never requested to inspect the device during discovery, the trial court
denied this request.
Subsequently, Dr. Gonzalez testified in his own defense. And during cross-
examination, despite the Hands’ counsel’s questions about the additional apparent
6 microwave thermotherapy treatments administered after he learned of Hand’s injury,
Dr. Gonzalez maintained that he only attempted to perform this type of treatment
once or twice in the period of time between his treatment of Hand and learning of
Hand’s injury. In addition, Dr. Gonzalez testified that, based on documents found in
his office records the previous evening, he learned that the Targis device currently in
the courtroom—while the identical model—was not the same machine he used to
treat Hand. Rather, that specific device had been retrieved by Urologix on March 22,
2006, and replaced with the current device.
Based on this testimony, the Hands’ counsel again sought to print out and
introduce the data showing that six microwave thermotherapy treatments were
performed after Dr. Gonzalez learned of Hand’s injury, but the trial court once again
ruled that any data from the Targis device should have been the subject of a discovery
request. The trial court allowed the Hands’ counsel to further question Dr. Gonzalez
regarding the replacement Targis device, but during that cross-examination, Dr.
Gonzalez maintained that he did not think he used the device on any patients after
learning of Hand’s injury.
7 The Hands argue that the data from the Targis device discovered during trial
was admissible to impeach Dr. Gonzalez, and that the trial court’s exclusion of this
evidence was harmful. As noted supra, we agree.
Under OCGA § 24-1-1, “[t]he object of all legal investigation is the discovery
of truth. . . . .”4 And consistent with this statutory mandate, “the policy of Georgia law
is to admit evidence, even if its admissibility is doubtful, because it is more dangerous
to suppress the truth than to allow a loophole for falsehood.”5 Toward that end,
OCGA § 24-6-607 states that “[t]he credibility of a witness may be attacked by any
party, including the party calling the witness.” Additionally, OCGA § 24-6-621
provides that, “[a] witness may be impeached by disproving the facts testified to by
the witness.” Moreover, a trial court may admit evidence relevant to the issue of
impeachment even if “the evidence would not qualify for admission on other
grounds.”6
4 As previously noted, this case was tried in April and May 2013, and, therefore, the new Evidence Code was applicable. See Ga. Laws 2011, p. 99, § 101. 5 Ballard v. Meyers, 275 Ga. 819, 821 (572 SE2d 572) (2002) (punctuation and citation omitted); accord Gibbons v. Maryland Cas. Co., 114 Ga. App. 788, 796 (152 SE2d 815) (1966). 6 Bolah v. Driskell, 318 Ga. App. 405, 407 (734 SE2d 108) (2012); accord Pouncey v. Adams, 206 Ga. App. 126, 127 (424 SE2d 376) (1992).
8 In the case sub judice, the data from the Targis device seemingly showed that,
contrary to his testimony in his deposition and at trial, Dr. Gonzalez did, in fact, use
the device—or an identical one—to treat six more patients after he learned of Hand’s
injury and allegedly “lost faith” in the device’s ability to function properly.
Defendants nevertheless assert that the trial court’s decision to exclude this evidence
was correct because whether Dr. Gonzalez used the Targis device to treat other
patients ultimately has no bearing on whether he breached the standard of medical
care in treating Hand. We disagree.
While it is true that a witness may not be impeached because of a discrepancy
as to a wholly immaterial matter, “a witness may be impeached on a collateral issue
which is indirectly material to the issue in the case.”7 Here, whether the Targis device
was functioning properly—and perhaps more importantly whether Dr. Gonzalez
actually believed that it was functioning properly—was certainly material to an issue
in the case. In fact, Dr. Gonzalez’s primary defense was that the device
7 Barngrover v. Hins, 289 Ga. App. 410, 412 (1) (657 SE2d 14) (2008) (punctuation omitted); see also Ballard, 275 Ga. at 821-22 (holding that trial court’s ruling that excluded relevant impeaching evidence and allowed the credibility of a crucial witness to go unchallenged because document was not listed in the pretrial order was error); Smith v. State, 190 Ga. App. 6, 7 (2) (378 SE2d 349) (1989) (“Generally, a party may show anything which in the slightest degree affects the credit of an opposing witness.” (punctuation omitted)).
9 malfunctioned, and the sole focus of the testimony of Dr. Gonzalez’s mechanical
engineering expert was an explanation of her examination of the device and her
theory as to how the device could have malfunctioned to cause Hand’s injury.
Furthermore, the trial court’s exclusion of the data from the device based upon
the Hands’ failure to request an inspection of the device during discovery is equally
unpersuasive in light of the Supreme Court of Georgia’s decision in Ballard v.
Meyers,8 where it reversed the trial court’s exclusion of a document impeaching the
plaintiff’s testimony because the defendant failed to list it in the pretrial order.9 In
doing so, our Supreme Court reasoned that “[w]hile an attorney in a civil action
should disclose the names of those who will or may be relied upon affirmatively to
prove the client’s case, there is no comparable rationale for requiring the disclosure
of documents which may be used to attack the credibility of the other side’s
witnesses.”10 The Ballard Court also noted that the imposition of such a restrictive
rule could lead to situations in which “[a] party’s witnesses could lie on the stand and
then that party [could] object to the introduction of any impeaching documents which
8 See supra note 5. 9 Ballard, 275 Ga. at 819. 10 Id. at 820.
10 were not expressly listed in the pretrial order.”11 And refusing to countenance such
a result, the Court held that “[i]n a trial, the credibility of the witnesses is a matter
which should be resolved by the jurors who have heard all of the relevant evidence,
and not by the text of the pretrial order.”12
Although decided well before the effective date of Georgia’s new Evidence
Code,13 the principles espoused in Ballard are similarly posited by the federal case
law interpreting Federal Rule of Evidence 607, which is identical to OCGA § 24-6-
607.14 Specifically, Rule 607 concerns the doctrine of impeachment by contradiction
and permits the admission of extrinsic evidence to impeach specific errors or
11 Id. at 821. 12 Id. at 822; see OCGA § 24-6-620 (“The credibility of a witness shall be a matter to be determined by the trier of fact, and if the case is being heard by a jury, the court shall give the jury proper instructions as to the credibility of a witness.”). 13 See supra note 4. 14 See Fed. R. Evid. 607 (“The credibility of a witness may be attacked by any party, including the party calling the witness”). Given the similarity between Georgia’s new evidence code and the Federal Rules of Evidence “it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” Jones v. State, 326 Ga. App. 658, 660 (1) (757 SE2d 261) (2014) (punctuation omitted).
11 falsehoods in a witness’s direct testimony, “subject to Rule 403.”15 Indeed, the federal
courts have described impeachment by contradiction as “a means of policing the
defendant’s obligation to speak the truth in response to proper questions[.]”16
Employing the logic and reasoning from Ballard, as well as that delineated in
the federal case law pertaining to Rule 607, we find that the Hands’ failure to request
data or documents from the Targis device during discovery—while tactically
questionable—does not justify the exclusion of such relevant and impeaching
evidence once it was discovered. Moreover, this information, which was never in the
possession of the Hands’ counsel, ostensibly documented treatments performed by
Dr. Gonzalez and, therefore, were arguably within his own ability to recall.
Consequently, the attempted introduction of this evidence by the Hands can hardly
15 United States v. Castillo, 181 F3d 1129, 1133 (9th Cir. 1999); accord United States v. Gilmore, 553 F3d 266, 271 (II) (3d Cir. 2009); United States v. Benedetto, 571 F2d 1246, 1250 n.7 (2d Cir. 1978). 16 Morgan v. Covington Township, 648 F3d 172, 179 (III) (C) (3rd Cir. 2011) (punctuation omitted); see Ronald L. Carlson & Michael Scott Carlson, Carlson On Evidence 255 (3d. ed. 2015) (noting that impeachment by contradiction permits courts to admit extrinsic evidence that specific testimony is false because other evidence contradicts it).
12 be characterized as “trial by ambush.”17 Given these circumstances and the fact that
our law favors admission of relevant evidence even of slight probative value,18 the
trial court’s ruling in this case constitutes an abuse of discretion as it “authorizes the
exclusion of relevant impeaching evidence and allows the credibility of a crucial
witness to go unchallenged.”19 Accordingly, we reverse the trial court’s judgment and
remand this case for a new trial. In doing so, we “deplore the significant burden a .
. . retrial will impose, not only on the parties, but on the community as well[.]”20
17 See Ballard, 275 Ga. at 822 (noting that because the controlling presumption is that all witnesses speak the truth, defense counsel was reasonably justified in assuming that he would not need to introduce impeaching document, and thus, his failure to list the document in the pretrial order was not an intentional act of ambush). 18 See Bennett, 322 Ga. App. at 728 (1) (noting that “evidence having a tendency to establish facts in issue is relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence.” (punctuation omitted)). 19 Ballard, 275 Ga. at 822; see Bolah, 318 Ga. App. at 406-07 (holding that evidence that plaintiff received compensation for an earlier injury, which ordinarily would have been irrelevant and prejudicial, was admissible to impeach plaintiff’s testimony that his earlier injury had not impaired him); cf. Bennett, 322 Ga. App. at 731 (1) (holding that the “exclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission.” (punctuation omitted)). 20 Harper v. Barge Air Conditioning, Inc., 313 Ga. App. 474, 479 (1) (722 SE2d 84) (2011) (punctuation omitted); see Guoth v. Hamilton, 273 Ga. App. 435, 441 (1) (615 SE2d 239) (2005).
13 Nevertheless, we remain steadfast in “our commitment as a Court to safeguarding the
sacrosanct and cherished right to a fair and impartial jury trial,”21 and we will not
hesitate to remand a case back to the trial court when this has not occurred.22
2. The Hands also contend that the trial court erred in failing to instruct the jury
on the law pertaining to spoliation of evidence. Because this issue will likely reoccur,
we address this enumeration and hold that the trial court did not err.
It is axiomatic that a jury charge must be “adjusted to the evidence, apt, and a
correct statement of the applicable law.”23 And a refusal to give a requested jury
charge is not error unless “the request is entirely correct and accurate; is adjusted to
the pleadings, law, and evidence; and is not otherwise covered in the general
21 Harper, 313 Ga. App. at 479 (1). 22 See id.; see also GA. CONST. ART. I, SEC. I, PARA. XI (A) (providing that the right to a jury trial “shall remain inviolate”); see generally Morris S. Arnold, A Historical Inquiry into the Right to Trial by Jury in Complex Civil Litigation, in The Bill of Rights: Original Meaning and Current Understanding 399, 400 (Eugene W. Hickok, Jr. ed., 1993) (“That special affection for the jury ought to be viewed as relevant not just to the fact that jury trial was ‘preserved’ in the Constitution; it is relevant as well to interpreting the scope of the actual provision, for it gives the right granted an aura and the Constitution a meaning they would not otherwise have if the institution of jury trial had been regarded more or less indifferently.”). 23 Wood v. B & S Enters., Inc., 314 Ga. App. 128, 130 (1) (723 SE2d 443) (2012) (punctuation omitted).
14 charge.”24 Furthermore, the review of allegedly erroneous jury instructions is a legal
question, and we therefore “owe no deference to the trial court’s ruling and apply the
‘plain legal error’ standard of review.”25 Bearing these guiding principles in mind, we
will now address the Hands’ specific claim.
The Supreme Court of Georgia has held that “spoliation refers to the
destruction or failure to preserve evidence that is necessary to contemplated or
pending litigation.”26 And if a trial court finds that a party has engaged in spoliation,
it may instruct the jury regarding OCGA § 24-14-22,27 which provides:
If a party has evidence in such party’s power and within such party’s reach by which he or she may repel a claim or charge against him or her but omits to produce it or if such party has more certain and satisfactory evidence in his or her power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against such party is well founded; but this presumption may be rebutted.
24 Preston v. Sabetazm, 269 Ga. App. 451, 454 (2) (604 SE2d 224) (2004). 25 Wood, 314 Ga. App. at 130 (1) (punctuation omitted). 26 Silman v. Assocs. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009) (punctuation omitted); accord Baxley v. Hakiel Indus., Inc., 282 Ga. 312, 314 (647 SE2d 29) (2007). 27 This code section is nearly identical to former OCGA § 24-4-22. See Ga. Laws 2011, Act 52, § 2.
15 However, notice of potential liability is “not the same as notice of potential
litigation.”28 Rather, to meet the standard for proving spoliation, the injured party
must show that “the alleged tortfeasor was put on notice that the party was
contemplating litigation.”29 Indeed, the simple fact that someone is injured, without
more, is “not notice that the injured party is contemplating litigation sufficient to
automatically trigger the rules of spoliation.”30 Furthermore, the trial court has wide
discretion in resolving spoliation issues, and “we will not disturb its ruling absent
abuse.”31
In this matter, the Hands requested that the trial court instruct the jury
regarding OCGA § 24-14-22 after learning during trial that the Targis device in the
courtroom was not the actual device that Dr. Gonzalez used to treat Hand. The trial
court denied the request, and the Hands now claim that this denial constituted error.
As noted previously, we disagree.
28 Craig v. Bailey Bros. Realty, Inc., 304 Ga. App. 794, 796 (1) (697 SE2d 888) (2010) (punctuation omitted); accord Silman, 286 Ga. at 28. 29 Craig, 304 Ga. App. at 796 (1). 30 Id. at 796-97 (1) (punctuation omitted). 31 Paggett v. Kroger Co., 311 Ga. App. 690, 692 (2) (716 SE2d 792) (2011).
16 Urologix replaced the Targis device in question nearly three months after Dr.
Gonzalez used it to treat Hand. And putting aside whether Dr. Gonzalez was being
truthful when he testified to having no recollection of Urologix retrieving device,
there is no evidence that Dr. Gonzalez had notice that the Hands were contemplating
litigation when Urologix replaced the device. Accordingly, the trial court did not err
in ruling that instructing the jury pursuant to OCGA § 24-14-22 was unwarranted.32
3. The Hands also contend that the trial court erred in prohibiting cross-
examination of Dr. Gonzalez regarding the past suspension of his medical license.
Because this issue may also reoccur, we will address this argument as well, and hold
that the trial court did not err in this respect either.
Prior to trial, the defendants filed a motion in limine, requesting the exclusion
of any evidence regarding the temporary suspension of Dr. Gonzalez’s medical
license, which occurred years before he treated Hand. Following a pretrial hearing on
32 See Hendley v. Evans, 319 Ga. App. 310, 317-18 (2) (b) (i) (734 SE2d 548) (2012) (holding that instruction regarding former OCGA § 24-4-22 is applicable only in cases when it is shown that a party has withheld evidence within party’s control and an instruction on that principle should be given only in “exceptional cases.”); cf. Silman, 286 Ga. at 27-28 (holding that defendant’s removal and demolition of old deck (following its collapse), without more, was insufficient to show spoliation); Craig, 304 Ga. App. at 797 (1) (holding that defendant’s discarding of protruding landscape timber spikes, seven months before plaintiffs filed suit alleging injury caused by spikes, did not constitute spoliation).
17 the matter, the Hands’ counsel indicated that he did not intend to delve into this issue,
and the trial court granted the defendants’ motion. Thereafter, during direct
examination, defense counsel asked Dr. Gonzalez how long he had been a urologist,
and he responded, “1989 to the present.” Subsequently, the Hands’ counsel sought
a bench conference and argued that Dr. Gonzalez’s above-referenced testimony
“opened the door” to the admission of evidence regarding the suspension of his
license. The trial court disagreed and denied the Hands’ request.
On appeal, the Hands reassert that Dr. Gonzalez’s testimony—that he had been
a urologist from 1989 to the present—opened the door for evidence regarding the
suspension of his license. We disagree. As previously noted, “[q]uestions of
relevancy are generally matters within the trial court’s discretion[.]”33 Nevertheless,
it is not error to exclude evidence that “is not related to an issue at trial.”34 And
evidence that is “both irrelevant and prejudicial is inadmissible.”35 Here, given that
the suspension and reinstatement of Dr. Gonzalez’s license occurred years before his
33 Wheeler v. Stewart, 234 Ga. App. 714, 715 (507 SE2d 540) (1998) (punctuation omitted); see also Bennett, 322 Ga. App. at 728 (1). 34 Wheeler, 234 Ga. App. at 715 (punctuation omitted). 35 Id. (punctuation omitted).
18 treatment of Hand, the admission of such evidence was irrelevant to whether the
doctor breached the standard of medical care in this particular case and would have
been unduly prejudicial.36 Moreover, even if we agreed with the Hands that Dr.
Gonzalez’s testimony regarding how long he had been a urologist could somehow be
construed as implying that his practice had never been interrupted for any reason and,
therefore, was untruthful, “a witness may not be impeached based upon a discrepancy
relating to a wholly immaterial matter.”37 And in stark contrast to the evidence
discussed in Division 1, supra, evidence of Dr. Gonzalez’s past license suspension
is immaterial. Accordingly, the trial court did not abuse its discretion in prohibiting
cross-examination of Dr. Gonzalez regarding the past suspension of his medical
license.38
36 See id. (holding that evidence of doctor’s drug use and subsequent rehabilitation, which occurred after his treatment of plaintiff, were not relevant to his treatment of plaintiff and would have been unduly prejudicial). 37 Smith v. State, 283 Ga. 237, 241 (5) (657 SE2d 523) (2008) (punctuation omitted); cf. Ballard, 275 Ga. at 821 (holding that trial court’s ruling that excluded relevant impeaching evidence was not immaterial as it allowed the credibility of a crucial witness to go unchallenged); Barngrover, 289 Ga. App. at 412 (1) (allowing plaintiff a limited cross-examination into whether physician’s medical license was renewed after physician’s specific testimony that he had allowed it to expire). 38 See Wheeler, 234 Ga. App. at 715.
19 4. Because we have determined that a new trial is necessary, we need not
address the Hands’ remaining enumeration of error regarding whether the evidence
supported the jury’s verdict.
For all of the foregoing reasons, we reverse the trial court’s judgment in favor
of the defendants and remand the case for a new trial.
Judgment reversed and case remanded. Doyle, P. J., and Miller, J., concur.
20 4/14/15
ON MOTION FOR RECONSIDERATION
On motion for reconsideration, the defendants request that we revisit our ruling
that the trial court erred in excluding the data from the Targis device (discovered
during trial) that was admissible to impeach Dr. Gonzalez’s testimony that he did not
use the device after learning of Hand’s injury. Specifically, defendants argue that the
trial court did not err in excluding this evidence because the data was never actually
printed from the device during trial, and thus, the Hands never made a formal proffer
of same. We disagree.
Defendants are correct that the record is somewhat confusing as to whether the
data on the Targis device—showing that Dr. Gonzalez used it six more times after
learning of Hand’s injury—was ever printed during trial. Indeed, this confusion
seemingly even extends to defendants’ own appellate brief, in which their initial
reference to the issue notes that “[a]ppellants turned the machine on and printed
21 subsequent data from it at trial . . .” But regardless of the form of the data, the fact
remains that it constitutes evidence that contradicts both Dr. Gonzalez’s deposition
and trial testimony.39 Moreover, defendants’ argument that exclusion of the evidence
was proper because the Hands never made a formal proffer is unpersuasive. OCGA
§ 24-1-103 (a) (2) provides that “[e]rror shall not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party is affected and . .
. [i]n case the ruling is one excluding evidence, the substance of the evidence was
made known to the court by an offer of proof or was apparent from the context within
which questions were asked.” Here, the record is replete with discussions between
both parties and the trial court regarding the fact that the data indicates that Dr.
Gonzalez used the Targis device after learning of Hand’s injury, despite his testimony
to the contrary.40 In fact, the trial court succinctly and accurately summarized the
Hands’ argument for the admissibility of the data just before ultimately ruling to
exclude the evidence. Thus, the trial court was fully aware of what the data generally
39 See Castillo, 181 F3d at 1133; see also Ballard, 275 Ga. at 822; Bolah, 318 Ga. App. at 406-07. 40 See Milich, Georgia Rules of Evidence, § 3.5, p. 66 (2d ed. 2014) (“[A]ll that is required [of an offer of proof] is presentation of the pertinent facts on the record, a task that can be accomplished by counsel simply stating the facts on the record.”).
22 entailed and why the Hands believed it was important to their case. Nevertheless, the
court chose to exclude this relevant impeaching evidence and allow the credibility of
Dr. Gonzalez to go unchallenged.41 In doing so, the trial court committed reversible
error. Accordingly, defendants’ motion for reconsideration is denied.
41 See Ballard, 275 Ga. at 822; Bolah, 318 Ga. App. at 406-07.