Court of Appeals Upholds Jury Award for Plaintiff in Car Crash Case
After a trial in a Georgia negligence case, the trial court entered judgment in favor of the plaintiff pursuant to the jury’s verdict. The defendant appealed, arguing that the court erred in refusing to allow her to open and close final arguments.
Background
On May 10, 2016, the plaintiff was stopped in his car at an intersection when the defendant drove into the back of his vehicle. The plaintiff said the impact caused his body to jerk forward, and that it was “like hitting a wall that you didn’t know was there.” Indeed, the impact caused the tow bar of his vehicle to lodge in the defendant’s vehicle. The plaintiff 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.
The plaintiff felt neck and back pain immediately after the 2016 crash and sought medical treatment the next day. An MRI showed that he had disc herniations in different parts of the spine than the 2009 herniated disc, as well as disc tear or fissure that wasn’t there after the 2009 crash.
The plaintiff received medical treatment in the summer of 2016, when he reported neck and back pain and radiating pain to his legs and was diagnosed with a pinched nerve. He got chiropractic treatment and epidural steroid injections, and was prescribed a back brace as well as anti-inflammatory and muscle relaxant medications. The plaintiff reported significant relief following this treatment and was discharged from the hospital. But his pain returned several months later, and he required additional medical treatment over the next few years.
The plaintiff filed this negligence action seeking to recover for injuries he sustained in the 2016 crash. At trial, the defendant stipulated that her negligence caused the crash but argued that the crash didn’t cause his injuries.
During his presentation of evidence, the plaintiff played the videotaped deposition of the plaintiff’s treating physician in the months after the 2016 crash. The doctor testified on direct examination that the 2016 crash caused the injuries and pain he suffered after the crash, consisting of both new injuries and an aggravation of his pre-existing condition. He also testified that the care and treatment the plaintiff received at hospital was reasonably necessary as a result of the injuries he sustained in the 2016 crash.
On cross-examination, the doctor agreed with the defendant’s counsel that frequently sitting for long periods can cause back pain. The defendant’s counsel then asked, “on the hospital’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 blog post on the hospital’s website that was noted as the Defendant’s exhibit and attached to the doctor’s deposition. The plaintiff’s doctor responded that the blog post was meant to be background information for patients and wasn’t a medical opinion that all back pain is caused by sitting for long periods. Counsel then again asked whether the blog post “states that most back pain is caused by frequently sitting for long periods, correct?” The doctor stated that the blog post was irrelevant, and counsel responded that the hospital “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 the plaintiff worked a desk job.
The plaintiff testified that he still suffered pain and needed medical treatment as a result of the 2016 crash. His medical bills from his treatment after the crash, which totaled about $60,000, were admitted into evidence. One of the plaintiff’s physicians testified that the treatment she rendered to the plaintiff after the crash was necessary due to aggravation of injuries caused by the crash.
The defendant didn’t call any witnesses or formally present any evidence to the jury at trial. However, the trial court ruled that the plaintiff had the right to open and close final arguments under O.C.G.A § 9-10-186 because the defendant presented evidence by quoting the hospital blog post to the plaintiff’s doctor.
The trial court 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. The plaintiff 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 the defendant from disputing whether or not the charges, as introduced, were, in fact, reasonably and necessary. Whether or not [the plaintiff’s] medical charges were reasonable and necessary are solely for you, the jury, to decide.
The jury returned a verdict for the plaintiff in the amount of $451,167.67, and the trial court entered judgment pursuant to the verdict. The defendant appealed.
Opening and Closing Final Arguments
Presiding Judge M. Yvette Miller of the Georgia Court of Appeals wrote in her opinion that the defendant argued that the trial court erred in refusing to allow her to open and close final arguments under O.C.G.A § 9-10-186 because she didn’t introduce any evidence at trial. The defendant asserted:
- Her counsel simply referenced the content of the hospital blog post to impeach the plaintiff’s doctor’s credibility regarding his causation opinion;
- Her counsel didn’t enter the post into evidence for the jury to see; and
- The plaintiff’s doctor didn’t read from the post.
Judge Miller and the Court of Appeals disagreed and concluded that by reading from the blog post, the defendant introduced evidence and thereby lost her right to open and close final arguments.
O.C.G.A § 9-10-186 provides in pertinent part that “in 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.”
The judge explained that it’s 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.
In 2000, 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 O.C.G.A § 17-8-71:
- 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 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;
- 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
- 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.
The Georgia Supreme Court has held that the defendant did not introduce evidence by having a witness read a question and answer from his prior testimony, where he was merely attempting to impeach the witness’s recollection and credibility by showing a discrepancy between his prior testimony and his trial testimony. Likewise, the Court of Appeals 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.
Here, the defendant didn’t simply reference material that was foundational for impeachment of the plaintiff’s doctor but instead introduced substantive evidence in an attempt to support her own theory of causation. Significantly, there was no indication that the statements in the hospital blog post were made by the plaintiff’s doctor himself. And while the plaintiff’s doctor testified that he believed the 2016 crash was the cause of the plaintiff’s injuries, he’d just conceded that prolonged periods of sitting may cause back pain before the defendant’s counsel began quoting the blog post.
The fact that the information in the hospital blog post may have cast doubt on the doctor’s causation opinion didn’t mean that the defendant’s counsel was laying a proper foundation for impeachment by quoting the post. Judge Miller explained that counsel didn’t highlight a discrepancy between any prior statement of the plaintiff’s doctor and his trial testimony. Further, the fact that counsel and not the plaintiff’s doctor read from the blog post and the fact that the post wasn’t formally entered into evidence were not controlling because the plaintiff’s doctor 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. As a result, the trial court did not err in refusing to allow the defendant to open and close final arguments.
The Court of Appeals affirmed the court’s judgment in favor of the plaintiff. Sandler v. Coger, 2024 Ga. App. LEXIS 445 (Ga. App. October 29, 2024).
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