Mason v. Home Depot U.S.A., Inc.

• Decision Date: 10 March 2008
• Docket Number: No. S07A1486.,S07A1486.
• Parties: MASON et al. v. HOME DEPOT U.S.A., INC. et al.
• Court: Georgia Supreme Court

658 S.E.2d 603

283 Ga. 271

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

No. S07A1486.

Supreme Court of Georgia.

March 10, 2008.

David Edward Tuszynski, Garland Samuel & Loeb P.C., Atlanta, Ned Miltenberg, Center for Constitutional Litigation, P.C., Washington, DC, for appellants.

Robert L. Shannon, Jr., Kevin Dean Abernethy, Hall, Booth, Smith & Slover, P.C., Frank Mitchell Lowrey, IV, Bondurant, Mixson & Elmore, Atlanta, for appellees.

Leslie J. Bryan, Doffermyre, Shields Canfield Knowles, Atlanta, amicus appellant.

Laura Lewis Owens, Alston & Bird, LLP, Robert M. Travis, LeeAnn Jones, Powell Goldstein, LLP, Theodore Freeman, Freeman, Mathis & Gary, LLP, Atlanta, Robert M. Brinson, Brinson Askew Berry Seigler Richardson, Rome, J. Kevin Buster, W. Ray Persons, King & Spalding, Lucas Przymusinski, Alston & Bird, LLP, Atlanta, amicus appellee.

BENHAM, Justice.

Arvin Ritchey Mason and Claudia Mason (hereinafter, the Masons) sued The Home Depot U.S.A., Inc. and The Flecto Company, Inc. in 1997 for injuries Arvin Mason allegedly received in 1996 while using Varathane, a floor covering product manufactured by Flecto and sold by Home Depot, and for Claudia Mason's resulting loss of consortium. Shortly before the case went to trial in February 2005, the Georgia General Assembly enacted the Tort Reform Act of 2005 (hereinafter TRA), including OCGA § 24-9-67.1,¹ which governs the qualification of expert witnesses and the admissibility of expert testimony. Based on the new statute, the defense filed a motion to exclude the testimony of two expert witnesses for the plaintiffs, Dr. Grace Ziem and Dr. Ronald Huggins. The trial court denied the motion, holding that application of the new statute after years of discovery under pre-existing rules governing expert witnesses would violate the Georgia Constitution's proscription against retroactive laws. After a mistrial, the defense renewed their motion to exclude the testimony of the two experts, in response to which the Masons mounted attacks on the constitutionality of OCGA § 24-9-67.1. The trial court rejected the Masons' contentions the statute denied equal protection, violated the constitutional guarantee of trial by jury, and violated the prohibition against retroactive law, but found a portion of subsection (b)(1) to deny due process because it contradicts part of subsection (a), and cured the problem by excising part of subsection (b)(1) and found subsection (f) violative of the principle of separation of powers, but cured that defect by severing subsection (f) from the statute. The trial court entered a second order applying the statute to exclude the testimony of the two experts. This appeal is from those two orders.

1. The Masons contend the statute violates the guarantees of equal protection of the laws found in the constitutions of the United States and Georgia. Specifically, they contend that because the statute imposes more stringent requirements for the admission of expert testimony in their tort action than applicable statutes would in criminal cases and in civil condemnation cases, they are disadvantaged in comparison to the parties in those types of cases.

Standing to challenge a statute on constitutional grounds in Georgia depends on a showing the plaintiff was injured in some way by the operation of the statute or that the statute has an adverse impact on the plaintiff's rights. Tennille v. State, 279 Ga. 884, 885, 622 S.E.2d 346 (2005); Agan v. State, 272 Ga. 540(1), 533 S.E.2d 60 (2000); State of Ga. v. Jackson, 269 Ga. 308(1), 496 S.E.2d 912 (1998); Ambles v. State, 259 Ga. 406(1), 383 S.E.2d 555 (1989). The Masons showed how application of the stricter standards of OCGA § 24-9-67.1 places them at a disadvantage compared to parties in criminal cases, in which the admissibility of expert testimony is governed by the less strict standard of OCGA § 24-9-67 ("In criminal cases, the 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."), and in civil condemnation actions, which are exempted from the requirements of the statute by OCGA § 22-1-14(b), thereby establishing their appellate standing to assert a claim of denial of equal protection of the law.²

One challenging a statute on equal protection grounds must initially establish that he is similarly situated to members of the class who are treated differently from him. Quarterman v. State, 282 Ga. 383, 384 (fn. 4), 651 S.E.2d 32 (2007). The Masons, therefore, bear the burden of showing that they are situated similarly to persons whom they allege are treated differently with regard to the admissibility of expert opinion testimony than they. Our review of the record and of Georgia law persuades us the Masons cannot shoulder that burden.

"[T]he equal protection clause [does not] exact uniformity of procedure. The Legislature may classify litigation and adopt one type of procedure for one class and a different type for another." Dohany v. Rogers, 281 U.S. 362, 369, 50 S.Ct. 299, 74 L.Ed. 904 (1930). Georgia's jurisprudence is in line with that quoted above since, far from considering all litigants to be similarly situated, this Court has consistently rejected the argument that all criminal defendants are similarly situated to each other and that all civil litigants are similarly situated to each other for purposes of evidentiary issues. "When considering an equal protection challenge in criminal matters, individuals are `similarly situated' only if they are charged with the same crime or crimes." Woodard v. State, 269 Ga. 317(3), 496 S.E.2d 896 (1998) (1995 amendment to Child Hearsay Statute unconstitutional because it created disparate categories of identically situated defendants charged with molestation, some of whom must defend against more evidence than others). See also Sims v. State, 260 Ga. 782(1), 399 S.E.2d 924 (1991) (statute which applies equally to all persons accused of child molestation does not create disparate classifications among similarly situated persons). In Bell v. Austin, 278 Ga. 844(2a), 607 S.E.2d 569 (2005), this Court rejected an equal protection challenge to OCGA § 24-3-18(a), which creates a hearsay exception applicable in "the trial of any civil case involving injury or disease," observing that the plaintiff could not show he was treated differently than similarly situated persons because he was "treated no differently than any other party in a civil action involving injury or disease. . . ." Thus, just as defendants in criminal cases are situated similarly only to others charged with the same offense, civil litigants are considered similarly situated only to others litigating the same cause of action.

While we have not previously been called upon to decide specifically whether civil law litigants are similarly situated to criminal litigants, we note that procedure in civil cases is governed by the Civil Procedure Act while procedure in criminal cases is governed by the provisions of Title 17 of the Official Code of Georgia, thus establishing a separation between the two spheres of litigation. We held in Sims v. State, supra, 260 Ga. at 783, 399 S.E.2d 924, that the defendant, charged with child molestation, had not shown "that child molesters are similarly situated to all other criminals or to civil litigants." (Emphasis supplied.) From the foregoing, we conclude that, for purposes of evidentiary standards, only those accused of the same offense are similarly situated in the criminal law arena, only those asserting or defending against the same cause of action are similarly situated in the civil law arena, and the parties to civil cases are not similarly situated to those engaged in criminal prosecutions.

Thus, the Masons cannot establish the necessary element of an equal protection claim that they are situated similarly to those being treated differently. That being so, we need not pursue the equal protection issue past that point. Quarterman v. State, supra. "The person who is asserting the equal protection claim has the burden to establish that he is similarly situated to members of the class who are treated differently from him. If the person asserting the violation cannot make the foregoing showing, there is no need to continue with an equal protection analysis." Rodriguez v. State, 275 Ga. 283(1), 565 S.E.2d 458 (2002) (citations and punctuation omitted). The trial court did not err in rejecting the Masons' equal protection challenge.

2. The Masons contend that OCGA § 24-9-67.1 violates due process because subsections (a) and (b)(1) are contradictory and, therefore, the entire statute should be stricken. The trial court agreed the subsections were contradictory; however, instead of striking the statute in its entirety, the trial court severed the contradictory language from subsection (b)(1)³ and then proceeded to apply the revised statute, ultimately ruling that the Masons' experts were precluded from testifying under subsection (b)(2). Appellees contend that the Masons lack standing to challenge the constitutionality of these two provisions because the trial court excluded their expert under subsection (b)(2). We disagree. The Masons have appellate standing because they were harmed by the trial court's decision not to strike OCGA § 24-9-67.1 in its entirety, thereby enabling the trial court to exclude the Masons' experts under subsection (b)(2).

As to the underlying merits of the Masons' constitutional challenges, the trial court was correct in finding that subsection (a) and subsection (b)(1) are contradictory. Specifically, subsection (b)(1) limits experts to relying on potentially admissible facts and data, whereas subsection (a) plainly states that facts and data relied upon need not be admissible. The two provisions cannot be harmonized and, read together, they render the statute unconstitutionally vague. The trial...