Home Depot USA, Inc. v. Tvrdeich, A04A0688.

• Decision Date: 16 July 2004
• Docket Number: No. A04A0688.,A04A0688.
• Citation: 268 Ga. App. 579,602 S.E.2d 297
• Parties: HOME DEPOT U.S.A., INC. v. TVRDEICH et al.
• Court: Georgia Court of Appeals

602 S.E.2d 297

268 Ga. App. 579

HOME DEPOT U.S.A., INC. v. TVRDEICH et al.

No. A04A0688.

Court of Appeals of Georgia.

July 16, 2004.

Certiorari Denied October 25, 2004.

Hawkins & Parnell, Michael J. Goldman, Bondurant, Mixson & Elmore, Frank M. Lowrey IV, Nicole G. Iannarone, Gray Hedrick & Edenfield, Lloyd B. Hedrick, Jr., Atlanta, for appellant.

Evans & Evans, Larry K. Evans, Cramer & Peavy, James E. Peavy, Griffin, for appellees.

ELLINGTON, Judge.

A Spalding County jury awarded Catherine Tvrdeich $1.5 million on her personal injury claim against Home Depot U.S.A., Inc.¹ Home Depot appeals, contending the trial court abused its discretion in admitting certain expert testimony and in denying its motion for a directed verdict on Tvrdeich's claim for attorney fees. For the reasons which follow, we affirm.

The following relevant facts are undisputed. On May 16, 1999, Catherine Tvrdeich fell while shopping in the garden department of a Home Depot store. She began suffering chronic debilitating headaches. Nine months later, Tvrdeich underwent a surgical fusion of the C5 and C6 vertebrae. Her surgery included the insertion of a metal plate and screws and a graft of coralline hydroxyapatite, derived from marine coral, which had been soaked in activated platelet-derived growth factor previously extracted and concentrated from her own blood. A few weeks later, Tvrdeich began exhibiting new symptoms, including tingling and swelling in her hands and feet. Ultimately, Tvrdeich's doctor diagnosed her with the systemic form of scleroderma,² an autoimmune connective tissue disorder, with secondary fibromyalgia. Because of her condition, Tvrdeich suffers chronic pain and disability and has a shortened life expectancy.

Before trial, Home Depot moved in limine to exclude opinion testimony that its negligence proximately caused Tvrdeich's systemic scleroderma. Home Depot argued that the theory that trauma can cause the onset of the disease was a novel scientific theory which had not reached a scientific stage of verifiable certainty, rendering the evidence inadmissible under Harper v. State, 249 Ga. 519, 523-526(1), 292 S.E.2d 389 (1982). The trial court denied Home Depot's motion in limine without evaluating the scientific evidence under the standard set out in Harper v. State.

At trial, Tvrdeich presented the following evidence on the issue of the cause of her systemic scleroderma-related damages. First, Tvrdeich's treating rheumatologist opined,

It is postulated that trauma causes the release of certain hormones which will then stress out a person's immune system. Subsequently, patients who are likely to develop an autoimmune problem or who are inherently susceptible to development of [an] autoimmune problem will go forth and develop one. Medically I think it more likely than not that the trauma sustained by Ms. Tvrdeich in May 1999 has been the precipitating factor in all her subsequent medical woes.

Another rheumatologist, a leading researcher in the area of scleroderma and related conditions, explained that in scleroderma cells called fibroblasts, which produce collagen and other proteins as part of the body's normal healing response, overproduce those proteins, damaging the skin, joints and internal organs. The scleroderma expert explained that, to develop scleroderma, a person must have a genetic predisposition for the disease and must experience a trigger that precipitates the onset of the disease. The expert testified that "[t]rauma is now recognized to be a potential trigger for scleroderma, presumably in somebody who has a genetic susceptibility," citing four published scientific articles. In those publications, as summarized by the witness, the authors described several patients who developed systemic scleroderma after episodes of physical trauma.

The scleroderma expert testified he was "very confident" that, "based upon a reasonable medical probability," Tvrdeich was genetically susceptible to the disease and that some combination of the trauma from her neck surgery, the introduction of foreign objects (the coral graft, metal plate and screws), and the use of Tvrdeich's concentrated platelet-derived growth factor precipitated the onset of the disease. Although he conceded that the timing of Tvrdeich's development of scleroderma "may be a mere coincidence," he believed that the odds that Tvrdeich would have developed systemic scleroderma without the neck surgery were "extremely slim." The expert based his conclusions on his experience and training and his examination of Tvrdeich and her medical records.

1. In related enumerations, Home Depot challenges the admission of expert testimony that its negligence proximately caused Tvrdeich's systemic scleroderma.³ "The admissibility of expert testimony is a matter within the trial court's sound discretion. We will not reverse the trial court's ruling on such evidence absent an abuse of that discretion." (Footnotes omitted.) Applebrook Country Dayschool v. Thurman, 264 Ga.App. 591, 592(1), 591 S.E.2d 406 (2003).

Home Depot contends, as it did at trial, that evidence that the trauma Tvrdeich experienced triggered the onset of systemic scleroderma was inadmissible under Harper v. State,⁴ because the theory that trauma can cause the onset of the disease was a novel scientific theory which had not reached a scientific stage of verifiable certainty. Tvrdeich, on the other hand, contends Harper v. State did not apply to the evidence at issue because her experts did not base their conclusions on the results of any scientific test, technique or procedure, but only on the evidence and their own understanding of their field of expertise.

In general, Georgia evidence law favors the admission of relevant expert opinion testimony, leaving the jury to determine the weight to give such evidence.⁵ In this vein, the Evidence Code expansively provides: "[t]he opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses." OCGA § 24-9-67. Before admitting expert testimony, trial courts determine whether the testimony is needed to assist the jury⁶ and whether the witness is qualified as an expert in the relevant field or discipline.⁷ In the seminal case of Harper v. State, the Supreme Court of Georgia recognized an additional threshold determination where proposed expert opinion testimony includes discussion of a scientific procedure or technique. 249 Ga. at 523-524(1), 292 S.E.2d 389.⁸ The Court held:

We hold that it is proper for the trial judge to decide whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure "rests upon the laws of nature." The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community. Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.

( Citations and footnotes omitted.) 249 Ga. at 525-526(1), 292 S.E.2d 389 (testimony regarding a criminal defendant's statements while under the influence of sodium amytal, so-called truth serum).⁹

As we have held, the Harper v. State analysis applies only where the expert bases his or her conclusions on the results of a scientific "procedure or technique." J.B. Hunt Transport v. Brown, 236 Ga.App. 634, 635(1)(a), 512 S.E.2d 34 (1999); Orkin Exterminating Co. v. McIntosh, 215 Ga.App. 587, 593, 452 S.E.2d 159 (1994). In Orkin Exterminating Co. v. McIntosh, we held that Harper v. State did not apply to the plaintiff's expert's testimony that exposure to pesticides caused the plaintiff's symptoms because the defendant pest control company "[did] not challenge a particular scientific test or technique employed by plaintiffs' experts; [rather, the defendant] challenge[d] the conclusions drawn by those experts from testimony and evidence in the record. This determination [was] for the jury[.]" 215 Ga.App. at 593(4), 452 S.E.2d 159. Similarly, in J.B. Hunt Transport v. Brown, we followed Orkin Exterminating Co. v. McIntosh and held that, because an accident reconstructionist performed no test or technique, Harper v. State did not apply to the expert's testimony that the defendant's negligence caused a wreck. 236 Ga.App. at 635(1)(a), 512 S.E.2d 34. Because Tvrdeich's experts drew their conclusions from testimony and evidence in the record, rather than from any scientific test or technique, we hold the trial court did not err in declining to apply the Harper v. State standard to their testimony. Id.; Orkin Exterminating Co. v. McIntosh, 215 Ga.App. at 587, 452 S.E.2d 159. It follows from this that, because the evidence was relevant and otherwise admissible, the trial court did not abuse its discretion in admitting it. ¹⁰ 2. Home Depot contends the trial court erred in denying its motion for directed verdict and judgment notwithstanding the verdict as to Tvrdeich's attorney fees claim pursuant to OCGA § 13-6-11. Specifically, Home Depot argues that Tvrdeich failed to produce legally sufficient evidence of the nature, necessity, and value of the legal services performed by counsel.

"The standard of review of a trial court's denial of a motion for a directed verdict is the `any evidence' standard, and the evidence is construed most favorably toward the party opposing the motion." (Citation,...