Expert Testimony in Sheep’s Clothing is Still Expert Testimony, Says Georgia Supreme Court

Sometimes it takes a lot of words to say something. The Iliad. War and Peace. SCOTUS’s Obergfell decision. But sometimes, in just a few words, it is possible to create an image, or stir a memory, or underscore a point. Call me Ishmael. I have a dream.A rose by any other name would smell as sweet. And, apropos of sweet-smelling roses, today’s very short Georgia Supreme Court decision makes the point that expert opinions are expert opinions even when clothed as fact testimony, and must be excluded from evidence unless they meet the relevant admissibility standards. Yugueros v. Robles, 2016 WL 6407314 (Ga. Oct. 31, 2016), is not a drug or device decision. It is a medical malpractice case, but its holding is relevant for anyone who deals with opposing experts. Which we do, regularly and painfully. (You can see a recent post on a similar issue here.)

In Yugueros, the appellant performed extensive cosmetic surgery on the appellee’s decedent (his wife). Subsequently, Mrs. Robles went to the emergency room suffering from severe abdominal pain. After an abdominal x-ray, which the E.R. doctor determined to be “unremarkable,” Mrs. Robles was discharged. A radiologist who later saw the abdominal film could not rule out the presence of free air in the abdomen, which “could be a normal post-operative condition or could indicate a more serious issue.” Yugueros, 2016 WL 6407314 at *1. The radiologist recommended a CT scan and posted his opinion in Mrs. Robles’s electronic medical record.

Later, Mrs. Robles’s pain worsened and she went to a different hospital. She was evaluated there by her plastic surgeon, who did not procure the radiology record from the previous hospital and did not order a CT scan. Since we have referred to the “decedent,” you know how this turned out. The appellee sued the plastic surgeon and her practice. He served the practice with a notice of a corporate designee deposition under OCGA § 9-11-30(b)(6), the Georgia analog to Fed. R. Civ. P. 30(b)(6). The practice designated its founder and co-owner. She was asked, inter alia, “Would [it], given your understanding, have been part of the standard of care to order a CT scan?” Her lawyer objected but allowed her to answer the question. And she responded in the affirmative. Id. The practice filed a motion in limine to exclude the testimony, arguing that it failed to meet the admissibility standards of Georgia’s version of Rule 702. The trial court granted the motion and excluded the testimony from trial, and the jury returned a defense verdict.

On appeal, the practice argued that the plastic surgeon “was not qualified as an expert and . . . her opinion was not buttressed by sufficient facts or data to be admissible.” Id. at *3 (citation omitted). The Court of Appeals affirmed, holding that the argument “miss[ed] the mark entirely. The evidence was not offered as expert testimony under OCGA § 24-7-702; it was offered as a party’s [Rule 30(b)(6)] admission against interest under OCGA § 9-11-32.”

The Supreme Court reversed, holding, “[T]his statement by the Court of Appeals does not accurately reflect the law.” The court explained thatGeorgia rulespermitted a corporate designee’s admission to be used against the corporation at trial “when that admission is permitted under the relevant rules of evidence. And, when testifying as to the medical standard of care, OCGA § 24-7-702 is a relevant rule of evidence . . . .” Id. at*4. The court concluded, “Under OCGA § 24-7-702, it is the role of the trial court to act as a gatekeeper of expert testimony. . . . This role is not extinguished simply because deposition testimony, including expert testimony, is secured under OCGA § 9-11-30(b)(6).” Id.

Simple, concise, but profound: expert testimony (in this case, a key opinion that should have been offered as part of the plaintiff’s prima facie case), even masquerading as something else, must be excluded when it fails to meet the relevant admissibility standards. We applaud the Yugueros court and every other court that refuses to shirk its “gatekeeper” role in the face of nuance. Finally, since our clients are frequent targets of Rule 30(b)(6), we are particularly gratified to see a court refuse to apply a rote “admission” rule in this specific context.