SECOND DIVISION MILLER, P. J., MARKLE and LAND, 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. https://www.gaappeals.us/rules
October 29, 2024
In the Court of Appeals of Georgia A24A0968. SANDLER v. COGER.
MILLER, Presiding Judge.
Following the trial in this negligence case, the trial court entered judgment in
favor of the plaintiff pursuant to the jury’s verdict. The defendant appeals, arguing
that the court erred in refusing to allow her to open and close final arguments and in
instructing the jury on causation and damages. We disagree and therefore affirm the
court’s judgment.
“Following a jury trial, we view the evidence in the light most favorable to the
verdict.” (Citation omitted.) Fassnacht v. Moler, 358 Ga. App. 463 (855 SE2d 692)
(2021). So viewed, the evidence at trial showed that on May 10, 2016, James Coger
was stopped in his vehicle at an intersection when Mary Elizabeth Sandler drove into the back of his vehicle. Coger described how the impact caused his body to jerk
forward and was “like hitting a wall that you didn’t know was there.” Indeed, the
impact caused the tow bar of Coger’s vehicle to lodge into Sandler’s vehicle. Coger
had previously been in an automobile crash in 2009 that caused injuries and pain in his
neck and back, including a herniated disc, but he had recovered from such injuries and
pain by the time of the 2016 crash.
Coger felt neck and back pain immediately after the 2016 crash and obtained
medical treatment the next day. An MRI scan showed that Coger had disc herniations
in different parts of the spine than the 2009 herniated disc, as well as disc tear or
fissure that was not present after the 2009 crash. Coger obtained additional medical
treatment in June, July, and August 2016, when he reported neck and back pain and
radiating pain to his legs and was diagnosed with a pinched nerve. Coger received
chiropractic treatment and epidural steroid injections, and he was prescribed a back
brace as well as anti-inflammatory and muscle relaxant medications. Coger reported
significant relief following this medical treatment and was discharged from the
Accident Injury Centers of Atlanta’s (“AICA”) care, but his pain returned several
months later, and he required additional medical treatment over the following years.
2 Coger filed this negligence action against Sandler, seeking to recover for injuries
he sustained in the 2016 crash.1 At trial, Sandler stipulated that her negligence caused
the crash but argued that the crash did not cause Coger’s injuries.
During his presentation of evidence, Coger played the videotaped deposition
of Dr. Francis Acquah, who treated him at AICA in the months after the 2016 crash.
Dr. Acquah testified on direct examination that the 2016 crash caused the injuries and
pain Coger suffered after the crash, consisting of both new injuries and an aggravation
of his pre-existing condition. Dr. Acquah also testified that the care and treatment
Coger received at AICA was reasonably necessary as a result of the injuries he
sustained in the 2016 crash.
On cross-examination, Dr. Acquah agreed with Sandler’s counsel that
frequently sitting for long periods can cause back pain. Sandler’s counsel then asked,
“on AICA’s own blog it states, quote, in fact, most back pain is caused by frequently
sitting for long periods, correct?” Counsel was referring to a printout of a blog post
from AICA’s website, which was identified as Defendant’s Exhibit 2 and attached to
Dr. Acquah’s deposition. Dr. Acquah responded that the blog post was meant to be
1 Sandler died during the litigation, and the temporary administrator of her estate was substituted in her place as a party. 3 background information for AICA’s patients and was not a medical opinion that all
back pain is caused by sitting for long periods. Counsel then again asked whether
AICA’s blog post “states that most back pain is caused by frequently sitting for long
periods, correct?” Dr. Acquah stated that the blog post was irrelevant, and counsel
responded that AICA “has represented that the stress that gets applied to your neck
and back muscles when sitting at a desk gradually builds over time and causes chronic
pain.” Counsel further stated that the blog post was relevant because Coger worked
a desk job.
Coger testified that he still suffered pain and needed medical treatment as a
result of the 2016 crash. Coger’s medical bills from his treatment after the crash,
which totaled approximately $60,000, were admitted into evidence. One of Coger’s
treating physicians testified that the treatment she rendered to Coger after the crash
was necessary due to aggravation of injuries caused by the crash.
Sandler did not call any witnesses or formally present any evidence to the jury
at trial. However, the trial court ruled that Coger had the right to open and close final
arguments under OCGA § 9-10-186 because Sandler presented evidence by quoting
the AICA blog post to Dr. Acquah.
4 The trial court instructed the jury that it “may conclude that a causal
connection exists between a crash and an injury in light of the short lapse between the
crash, the onset of symptoms and receipt of medical treatment. Whether you draw
such a conclusion is a matter solely for you, the jury, to decide.” The court also
instructed the jury that
necessary expenses, resulting from the injury, are a legitimate item of damages. As to medical expenses, such as hospital, doctor and medicine bills, the amount of the damage would be the reasonable value of such expenses, as was reasonably necessary. [Coger] may identify his bills incurred for his medical treatment and such do not have to be identified by the medical provider who submitted the bill, and it shall not be necessary for an expert witness to testify that the charges were reasonable and necessary. But, this does not prevent [Sandler] from disputing whether or not the charges, as introduced, were, in fact, reasonably and necessary. Whether or not [Coger’s] medical charges were reasonable and necessary are solely for you, the jury, to decide.
The jury returned a verdict in favor of Coger in the amount of $451,167.67, and
the trial court entered judgment pursuant to the verdict. Sandler then filed this appeal.
1. First, Sandler argues that the trial court erred in refusing to allow her to open
and close final arguments under OCGA § 9-10-186 because she did not introduce any
evidence at trial. Sandler asserts that her counsel simply referenced the content of the 5 AICA blog post in order to impeach Dr. Acquah’s credibility regarding his causation
opinion, that counsel did not enter the post into evidence for the jury to see, and that
Dr. Acquah did not read from the post. We disagree and conclude that by reading
from the blog post, Sandler introduced evidence and thereby lost her right to open and
close final arguments.
OCGA § 9-10-186 provides in pertinent part that “[i]n civil actions, where the
burden of proof rests with the plaintiff, the plaintiff is entitled to the opening and
concluding arguments except that if the defendant introduces no evidence or admits
a prima-facie case, the defendant shall be entitled to open and conclude.” “In civil
cases, it is reversible error to deny a defendant its right to open and conclude closing
argument if he or she introduces no evidence in response to the plaintiff’s case, unless
the evidence demands a verdict.” TGM Ashley Lakes, Inc. v. Jennings, 264 Ga. App.
456, 465 (5) (590 SE2d 807) (2003).
There is scant case law interpreting when a defendant is considered to have
introduced evidence under OCGA § 9-10-186.2 However, former OCGA § 17-8-71
2 In Petrenko v. Moseri, 333 Ga. App. 14, 17 (1) (775 SE2d 272) (2015) (physical precedent only), this Court concluded that a defendant did not lose the right to open and close final arguments under the statute, where the defendant merely showed a witness an exhibit and the witness “did not read from [the exhibit] or disclose its 6 provided that in criminal cases the defendant was entitled to open and close final
arguments if he “introduce[d] no evidence.” See Rolland v. State, 280 Ga. 517, 518 n.5
(2) (a) (630 SE2d 386) (2006).3 Unlike OCGA § 9-10-186, there is substantial case law
interpreting when a defendant is considered to have introduced evidence under
former OCGA § 17-8-71, and given the identical language and subject matter between
the two statutes, we find those cases persuasive in our interpretation of OCGA § 9-10-
186. A review of that case law indicates that Sandler introduced evidence and lost the
right to open and close final arguments here.
The Georgia Supreme Court developed the following standards for determining
whether a defendant introduced evidence and lost the right to open and close final
arguments under former OCGA § 17-8-71:
(1) If, under the guise of cross-examination, a defendant reads from the portions of a prior written statement of a witness that are not related to impeaching the witness, the defendant has effectively introduced
contents other than to admit that his assistant had documented a telephone call from plaintiff’s counsel regarding questions about the medical narrative he had prepared.” Of course, Sandler’s counsel did much more than merely show the AICA blog post to Dr. Acquah, as counsel read from the post verbatim and recounted the substance of it. 3 After a 2005 amendment, a defendant no longer has this right. Id. 7 evidence to the jury that should have been formally offered into evidence and the defendant therefore loses the right to open and close final arguments; (2) if a defendant reads only the portions of the prior written statement of a witness that are relevant to impeaching the witness, the defendant has not introduced evidence and does not lose the right to open and close; and (3) if a defendant, in impeaching a witness with a prior inconsistent statement, voluntarily introduces the statement into evidence in order to make it a part of the record, the defendant has introduced evidence and has lost the right to open and close final arguments.
Smith v. State, 272 Ga. 874, 878 (3) (536 SE2d 514) (2000). Thus, in Lane v. State, 274
Ga. 751, 752-753 (559 SE2d 455) (2002), the Supreme Court held that the defendant
did not introduce evidence by having a witness read a question and answer from his
prior testimony, where the defendant was merely attempting to impeach the witness’s
recollection and credibility by showing a discrepancy between his prior testimony and
his trial testimony. And in Davis v. State, 235 Ga. App. 256, 257-258 (510 SE2d 537)
(1998), this Court held that defense counsel’s reading a prior inconsistent statement
to a witness before questioning him about it was simply foundational to impeachment
and did not constitute the introduction of evidence.
8 In Kennebrew v. State, 267 Ga. 400, 403 (4) (480 SE2d 1) (1996), the Georgia
Supreme Court held that a defendant who attempted to impeach a witness by playing
the witness’s tape-recorded statement introduced evidence under former OCGA § 17-
8-71. The Supreme Court explained that while the defendant did not formally tender
the tape into evidence, “the presentation of the tape’s recorded contents to the jury
was the equivalent of a formal tender of evidence divesting [the defendant] of the right
to open and close final arguments.” Id. at 403-404 (4). The Supreme Court stated that
a defendant may not
present[] evidence to the jury and retain[] the right to open and close final arguments simply by failing or refusing to make a formal motion for the introduction of such evidence. . . . Whether through a defendant’s own statement or under the guise of cross-examination, a defendant cannot be permitted to present evidence to the jury which should otherwise be formally offered.
(Citation omitted.) Id. at 404 (4); see also Aldridge v. State, 237 Ga. App. 209, 215 (6)
(515 SE2d 397) (1999) (“The Supreme Court’s holding [in Kennebrew] was meant to
prevent a defendant from circumventing [former] OCGA § 17-8-71 by presenting
evidence in informal or unorthodox ways and then attempting to retain the right to
open and close final arguments simply by failing to make a formal motion for the
9 introduction of the evidence.”). Similarly, in Aldridge, supra, 237 Ga. App. at 214-215
(6), this Court held that a defendant lost the right to open and close final arguments
by having witnesses read highlighted portions of their prior statements.
Here, Sandler did not simply reference material that was foundational for
impeachment of Dr. Acquah but instead introduced substantive evidence in an
attempt to support her own theory of causation. See McFarlin v. State, 259 Ga. App.
838, 840 (2) & n.2 (578 SE2d 546) (2003) (trial court did not err in refusing to allow
the defendants to open and close final arguments, where they had a physician read
portions of medical reports on the victim into evidence, not to impeach the physician
but to present evidence regarding the victim’s condition at the time of the incident).
Significantly, there was no indication that the statements in the AICA blog post were
made by Dr. Acquah himself. And while Dr. Acquah had testified that he believed the
2016 crash was the cause of Coger’s injuries, he had just conceded that prolonged
periods of sitting may cause back pain before Sandler’s counsel began quoting the blog
post. See Thompson v. State, 265 Ga. App. 696, 697-698 (1) (595 SE2d 377) (2004)
(introduction of evidence waived the defendant’s right to present the final closing
argument, where defense counsel used a witness’s prior statement “for more than
10 mere impeachment,” specifically, to introduce substantive evidence about what was
not included in the statement); Aldridge, supra, 237 Ga. App. at 216-217 (counsel’s
action of having witnesses read their prior statements was not merely the foundation
for impeachment, because counsel did more than recall a contradiction to the
witnesses, and the statements contained information addressing matters other than
the challenged contradictory statements).
The fact that the information in the AICA blog post may have cast doubt on
Dr. Acquah’s causation opinion does not mean that Sandler’s counsel was laying a
proper foundation for impeachment by quoting the post. Unlike the defendants in
Lane, supra, 274 Ga. at 752-753, and Davis, supra, 235 Ga. App. at 257-258, counsel
did not highlight a discrepancy between any prior statement of Dr. Acquah and his
trial testimony. Further, the fact that counsel and not Dr. Acquah read from the blog
post and the fact that the post was not formally entered into evidence are not
controlling, because Dr. Acquah implicitly confirmed the content of the post, and
counsel’s actions in reading verbatim from the post and recounting the substance
thereof constituted the equivalent of a formal tender of evidence. See Kennebrew,
supra, 267 Ga. at 403-404 (4); Aldridge, supra, 237 Ga. App. at 214 (6). Accordingly,
11 the trial court did not err in refusing to allow Sandler to open and close final
arguments.
2. Next, Sandler argues that the trial court erred in instructing the jury that it
could find a causal connection between a crash and an injury based upon a short lapse
of time between the crash, the onset of symptoms, and the receipt of medical
treatment. Sandler asserts that this instruction was not tailored to the evidence
because Coger did not report an injury at the accident scene, and he incurred the
majority of his medical bills after he felt “much better.” We disagree and conclude
that the challenged instruction was not misleading.
“We review de novo an allegedly erroneous jury instruction, which is a legal
question.” (Citation and punctuation omitted.) White v. Stanley, 369 Ga. App. 330,
331 (893 SE2d 466) (2023). “And in assessing the assertion of an erroneous jury
instruction, the instruction must be evaluated in the context of the trial court’s jury
instructions as a whole. Indeed, the only requirement regarding jury charges is that
they were, as given, correct statements of the law and, as a whole, would not mislead
a jury of ordinary intelligence.” (Citations and punctuation omitted.) Id. at 331-332.
“[A] jury charge must be adjusted to the evidence, apt, and a correct statement of the
12 applicable law.” (Citation and emphasis omitted.) Boston Men’s Health Center, Inc. v.
Howard, 311 Ga. App. 217, 221 (1) (715 SE2d 704) (2011).
In Hutcheson v. Daniels, 224 Ga. App. 560, 561 (1) (481 SE2d 567) (1997), this
Court held that “a lay jury could conclude from common knowledge that a causal
connection existed in light of the short lapse between [the plaintiff’s] accident and his
onset of symptoms and receipt of medical treatment.” And in Safeway Ins. Co. v.
Hanks, 323 Ga. App. 728, 730 (1) (747 SE2d 890) (2013), this Court explained that
this rule was especially applicable in cases involving injuries suffered in automobile
crashes. Thus, the challenged instruction here was a correct statement of the law.
The challenged instruction was also authorized by the evidence, as Coger
reported pain immediately after the 2016 crash and obtained medical treatment the
next day. And in considering the instructions as a whole, the trial court explained that
(1) whether the jury found a casual connection between a crash and an injury based
upon a short lapse of time between the crash, the onset of symptoms, and the receipt
of medical treatment was a matter solely for the jury to decide, and (2) Coger bore the
burden of proving the elements of his claims by a preponderance of the evidence,
including the burden of proving that Sandler’s negligence caused his injuries. See
13 Jackson v. Rodriquez, 173 Ga. App. 211, 213 (2) (325 SE2d 857) (1984) (the trial court
did not err by charging the jury that physicians are presumed skillful because, although
this charge was more favorable to the defendant, the charge was coupled with a more
complete charge explaining how the presumption could be overcome by the plaintiff).
Therefore, this challenged instruction was not erroneous.
3. Finally, Sandler argues that the trial court erred in instructing the jury that
Coger met his burden of proof as to the reasonableness of damages merely by
introducing his medical bills. We disagree.
The trial court simply instructed the jury that Coger could identify his medical
bills, that such bills did not have to be identified by the medical provider, and that it
was not necessary for an expert witness to testify that the charges were reasonable and
necessary. This was a correct statement of the law, because a “patient shall be a
competent witness to identify bills for expenses incurred in the treatment of the
patient upon a showing by [him] that the expenses were incurred in connection with
the treatment of the injury . . . involved in the subject of litigation at trial,” and
“[s]uch items of evidence need not be identified by the one who submits the bill, and
14 it shall not be necessary for an expert witness to testify that the charges were
reasonable and necessary.” OCGA § 24-9-921 (a) & (b).
Significantly, the trial court also instructed the jury that (1) Sandler could still
dispute whether the medical bills, as introduced, were reasonable and necessary, and
(2) whether the bills were reasonable and necessary was solely for the jury to decide.
See OCGA § 24-9-921 (b) (providing in pertinent part that “nothing in this Code
section shall be construed to limit the right of a thorough and sifting cross-examination
as to [medical bills]”); Jackson, supra, 173 Ga. App. at 213. The court also instructed
the jury that Coger bore the burden of proving the elements of his claims, including
his damages, by a preponderance of the evidence. Accordingly, the challenged
instruction did not mislead the jury as to Coger’s burden of proving the
reasonableness of his damages.
In conclusion, because the trial court did not err in refusing to allow Sandler to
open and close final arguments or in instructing the jury, we affirm the court’s
judgment in favor of Coger.
Judgment affirmed. Markle and Land, JJ., concur.