Harold R. Workman v. Larry Van-Thomas Crisco

• Court: Court of Appeals of Georgia
• Decided: July 10, 2014
• Docket: A14A0563
• Status: Published

Opinion

SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY , 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/

July 10, 2014

In the Court of Appeals of Georgia A14A0563. WORKMAN et al. v. CRISCO et al.

MCFADDEN, Judge.

A jury found in favor of defendants Larry Van-Thomas Crisco, M. D. and

Northside Cardiology, P. C., in a medical malpractice action brought by Harold and

Patricia Workman, and the trial court entered judgment on the verdict. The Workmans

appeal. They argue that the defendants did not comply with their obligation to notify

the Workmans during discovery that an identified fact witness also would provide an

expert opinion, and that, consquently, the trial court should have excluded the opinion

testimony, postponed the trial to allow them to interview the witness, or declared a

mistrial. The Georgia Civil Practice Act, however, did not require the defendants to

identify the witness as an expert. Accordingly, we affirm. In their lawsuit, the Workmans alleged that Mr. Workman was badly burned

by exposure to a high dose of radiation during a cardiac catheterization and

intervention procedure performed by Dr. Crisco on January 31, 2008, at Saint

Joseph’s Hospital of Atlanta, Inc. Dr. Crisco was in practice with Northside

Cardiology. The record does not contain the Workmans’ discovery requests to the

defendants or the defendants’ responses, but the parties appear to agree that, in their

discovery responses, the defendants identified Dr. Richard Sankey as a fact witness

but not an expert witness. Dr. Sankey was a physicist in Saint Joseph’s Hospital’s

radiation oncology department and the hospital’s radiation safety officer at the time

of Mr. Workman’s procedure.

In their consolidated pretrial order, both sets of parties listed Dr. Sankey as a

“may call” witness. But at trial, at the start of the defendants’ case in chief, the

Workmans moved the trial court to exclude any testimony of Dr. Sankey’s on the

issue of the amount of radiation that Mr. Workman received during the procedure (the

radiation dose). Their counsel represented that the prior evening he had learned that

the defendants would be calling Dr. Sankey and that he assumed the defendants

would use Dr. Sankey as an expert witness on the radiation dose issue. He argued that

Dr. Sankey’s opinion on that issue would be based in part upon hearsay data provided

2 by an outside company with which the hospital contracted to perform various tasks

related to its radiation equipment. Invoking OCGA § 9-11-26, he argued that the

defendants should not be allowed to elicit such an opinion from Dr. Sankey because

they had not identified him as an expert witness. That Code section pertinently

provides that, during discovery,

[a] party may, through interrogatories, require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

OCGA § 9-11-26 (b) (4) (A) (i).

The defendants’ counsel responded that the requirements of OCGA § 9-11-26

(b) (4) (A) (i) did not apply to Dr. Sankey’s opinion on the radiation dose issue,

because Dr. Sankey was a fact witness in the case. He argued that Dr. Sankey had

been deposed as a fact witness in his role as the hospital’s radiation safety officer, and

that in that role he investigated Mr. Workman’s burn by making calculations

regarding Mr. Workman’s radiation dose based on information he received from the

3 outside company. The defendants’ counsel represented to the trial court that Dr.

Sankey’s testimony was “not going to be some expert opinion that is independent

. . . of the work that he did in investigating this particular situation.” The defendants’

counsel also represented to the trial court, without contradiction from the Workmans’

counsel, that during Dr. Sankey’s deposition the Workmans’ counsel questioned him

about his radiation dose calculations. (Dr. Sankey’s deposition transcript apparently

was not made a part of the record.)

The trial court ruled that Dr. Sankey could “give expert opinions about what

he was doing as a fact witness[,] . . . based on what he determined as a fact witness,”

even if those opinions were based on hearsay. See former OCGA § 24-9-67.1 (a)

(permitting expert opinion based upon inadmissible facts or data). The trial court also

found that the testimony was not a surprise to the Workmans. Dr. Sankey proceeded

to testify about the work he performed to investigate the radiation dose received by

Mr. Workman, the information he received from the outside company in connection

therewith, and his opinion regarding the radiation dose, and the Workmans’ counsel

cross-examined Dr. Sankey on those issues.

We agree that OCGA § 9-11-26 (b) (4) (A) (i) did not require Dr. Crisco to

identify Dr. Sankey as an expert witness. That Code section “applies only to experts

4 whose knowledge of the facts and opinions held were acquired or developed in

anticipation of litigation or for trial, and not to an expert witness who is in fact an

actor or observer of the subject matter in the suit.” Stewart v. Odunukwe, 273 Ga.

App. 380, 381 (615 SE2d 223) (2005) (citations and punctuation omitted). Dr. Sankey

investigated the amount of radiation Mr. Workman received and reached an opinion

on that issue in his capacity as the hospital’s radiation safety officer. Consequently,

he was an actor or observer of the subject matter in this suit and the requirements of

OCGA § 9-11-26 (b) (4) (A) (i) did not apply to him. See Stewart, supra; McNabb v.

Landis, 223 Ga. App. 894, 895 (2) (479 SE2d 194) (1996).

Moreover, “[t]he purpose of identifying witnesses is to eliminate the possibility

of surprise to each party.” Stewart, 273 Ga. App. at 381 (citation omitted). The record

reflects that the Workmans questioned Dr. Sankey about the radiation dose issue in

his deposition. Having done so, “they cannot claim surprise by his testimony.” Id. at

382 (citation omitted). The trial court did not err in allowing the testimony. See id.;

Kamensky v. Stacey, 134 Ga. App. 530, 532 (1) (215 SE2d 294) (1975).

Judgment affirmed. Andrews, P. J. concurs; Ray, J., concurs in the judgment

only with special concurrence.

5 A14A0563. WORKMAN, ET AL v. CRISCO, ET AL.

RAY, Judge, concurring specially.

I write to explain why I join in the majority’s judgment in this case.

Pretermitting whether Dr. Cisco was an expert witness or whether the Defendants

were excused from identifying him as such in their response to the Plaintiffs’

discovery requests, clearly they cannot claim any harm when the gist of his testimony

was discovered through his deposition and when they had ample opportunity to cross-

examine him on his opinions during the trial of this case. Thus, I agree with the

majority’s decision to affirm the verdict and judgment below.