Last year in 2022, we tried three cases to verdict. Very few lawyers are able to say that they are trial lawyers. Even fewer can say that they took three cases to trial in one year. We are those lawyers. What happens at trial is important and if errors are made, the losing side may want to appeal. This blog post focuses on the appeal process and arguments that can or cannot be made.
On September 9, 2014, a woman was involved in a car accident with another driver and his wife. The couple filed a complaint against the woman seeking damages for pain and suffering and medical expenses resulting from the accident.
During a five-day jury trial in 2018, the defendant admitted to causing the collision, but she disputed that she caused the plaintiffs’ injuries. She also disputed the amount of damages that should have been awarded. The jury ultimately reached a verdict wherein they awarded the plaintiffs $734,563.78. The defendant appealed that verdict.
At issue was whether the trial court erred by applying the wrong legal standard when it limited the testimony of the defendant’s biomechanical expert and prohibited the expert from testifying that the force generated in the collision was not enough to cause the herniated discs in one of the plaintiff’s neck and back.
The Court of Appeals Says the Argument was Waived
The Defendant contended that the trial court erred by applying the incorrect legal standard and, as a result, improperly limited the testimony of her biomechanical expert. Specifically, she alleged that the trial court should have allowed the expert to testify on his opinion that the force generated in this collision couldn’t have caused the plaintiffs’ spinal injuries. (As a side note, insurance companies rarely accept responsibility for their insured drivers who cause injuries.)
Judge Christian Coomer and the Georgia Court of Appeals ruled that the defendant waived this argument.
Before trial, the plaintiffs filed a motion to try to prevent the expert from testifying as to the specific cause of any injury to the plaintiffs. At a hearing on that motion, the defendant’s counsel initially said he believed that the expert could “testify as to the forces specific to this accident and the forces specific to this accident on the plaintiffs, as to whether those forces were strong enough or not strong enough to cause the specific claimed injuries in this case.” After discussion between the court and the parties, the defendant’s counsel changed his position, and said that he didn’t think he would ever get to the ultimate question. He said he didn’t think that the question asked of the expert would be based upon his information, knowledge, expertise, that is “Were the forces contained in this accident cause the disk herniations as alleged by the plaintiffs?”
Following the court’s ruling that the expert “shall not be permitted to give an opinion about the precise cause of any specific injury,” The defendant’s lawyer (whos is paid by the insurance company) responded:
“As long as — I’m okay with that. I guess my clarification is — I didn’t — was to making sure that he’s able to give his testimony [compliant with the court’s order], that will be fine. I don’t need him to say it did not — if the concern is [the expert] is going to say it could not have caused, then I think we can work with that.”
During trial, the defendant’s lawyer asked the expert whether “the cervical herniation alleged in this case would have occurred as a result of this accident.” After the plaintiffs objected, the defense attorney offered to rephrase the question to comply with the court’s decision on the earlier motion. The defendant’s lawyer never argued that the question was consistent with the order on the motion or asked the trial court to reconsider its order. In effect, the defendant’s lawyer withdrew his question and replaced it with one that complied with the trial court’s order. Although the expert never answered the question as originally posed, he testified that he believed the force involved in this car accident was 445 pounds on the lumbar spine, and that a lumbar herniation requires 1,200 pounds of force.
Judge Coomer and the Georgia Court of Appeals held that by representing to the trial court that he wouldn’t ask the expert whether “the forces contained in this accident [caused] disk herniations” claimed by the plaintiff, and by electing to rephrase his question at trial to comply with the court’s prior ruling, the Court found that the defendant has waived this issue.
Citing a 1992 appellate decision, the Court of Appeals said that no matter how erroneous the ruling might have been, a litigant can’t submit to a ruling, acquiesce in the ruling, and still complain about that same ruling. He’s required to stand his ground and fight in order to successfully argue as error an erroneous ruling by the trial judge.
“Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it. Failure to object to the procedure amounts to waiver,” Judge Coomer wrote.
Furthermore, when the defendant’s lawyer said that he wasn’t going to ask whether “the forces contained in this accident — did they cause the disk herniations as alleged by [the plaintiffs],” he affirmatively waived plain error review of the issue.
Plus, he also told the trial court after its ruling that he was “okay with that.”
So, by representing to the trial court that he would not ask the expert whether the forces contained in this accident caused disk herniations as alleged by the injured party, and by electing to rephrase his question at trial to comply with the court’s prior ruling, the driver waived the issue of whether the trial court erred in applying the correct legal standard in limiting the testimony of her biomechanical expert. The judgment was affirmed. Zakas v. Jackson, 352 Ga. App. 597, 835 S.E.2d 371 (Ga. App. 2019).
Do You have Questions about Your Case?
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