Yugueros v. Robles

• Decision Date: 31 October 2016
• Docket Number: S16G0619
• Citation: 300 Ga. 58,793 S.E.2d 42
• Parties: YUGUEROS v. ROBLES.
• Court: Georgia Supreme Court

300 Ga. 58

793 S.E.2d 42

YUGUEROS

v.ROBLES.

S16G0619

Supreme Court of Georgia.

Decided: October 31, 2016

Thomas S. Carlock, Carlock Copeland & Stair, LLP, 191 Peachtree Street N.E. Suite 3600, Atlanta, Georgia 30303, Wayne D. McGrew III, Carlock, Copeland & Stair, LLP, 2600 Marquis Two Tower 285 Peachtree, Center Avenue, Atlanta, Georgia 30303, Michael Scott Bailey, Erica S. Jansen, Huff, Powell & Bailey, LLC, 999 Peachtree Street Suite 950, Atlanta, Georgia 30309–0000, for Appellant.

Brent J. Kaplan, Hilary Alison Wayne, Isenberg & Hewitt, P.C., 6600 Peachtree Dunwoody Road 600, Embassy Row, Suite 150, Atlanta, Georgia 30328, for Appellee.

HINES, Presiding Justice.

This Court granted certiorari to the Court of Appeals in Robles v. Yugueros , 335 Ga.App. 324, 779 S.E.2d 139 (2015), to determine whether that Court was correct in holding that deposition testimony of an organizational representative taken under OCGA § 9–11–30 (b) (6) may be admitted into evidence at trial under OCGA § 9–11–32 (a) (2), without regard to the rules of evidence governing admissibility of expert testimony, see OCGA § 24–7–702. Finding that the Court of Appeals erred, we reverse and remand this case for further proceedings.

Iselda Moreno, wife of Rudy Robles, received liposuction

, buttock augmentation, and abdominoplasty surgery performed by Dr. Patricia Yugueros of Artisan Plastic Surgery, LLC ("Artisan") on June 24, 2009. Suffering abdominal pain, Moreno went to the emergency room at Gwinnett Medical Center ("GMC"), where Dr. Michael Violette ultimately discharged her after determining her abdominal x-ray was unremarkable. A GMC radiologist, Dr. James York, who later saw Moreno's abdominal x-ray, could not rule out the possibility of "free air" in her abdomen, which could be a normal post-operative condition or could indicate a more serious issue. He recommended a CT scan and posted this opinion in Moreno's electronic medical record.

Moreno's pain worsened and Robles contacted Dr. Yugueros on Moreno's behalf, who directed him to take Moreno to Northside Hospital, where Dr. Yugueros had privileges; there, Dr. Yugueros provided certain treatment, but did not order a CT scan

or procure the radiology report from GMC. Dr. Yugueros, in concert with various other medical professionals, ordered other tests, including an abdominal x-ray, which showed evidence of abdominal free air. Several hours later, on June 28, 2009, Moreno died. Robles sued Dr. Yugueros and Artisan, who designated Drs. Violette and York, as well as GMC, as potentially liable non-parties.

Robles served Artisan with a notice of deposition to depose a representative of the practice under OCGA § 9–11–30 (b) (6),¹ and Artisan designated Dr. Diane Alexander as the deponent; Dr. Alexander is Artisan's founder and co-owner. During Dr. Alexander's deposition, the following occurred:

Q: Do you know who ordered a CT scan

?

A: I suspect Dr. Yugueros ordered it.²

Q: Would that, given your understanding, have been part of the standard of care to order a CT Scan ?

[Counsel for Yugueros and counsel for Artisan each stated: "Object to the form," and Alexander was told she could answer the question.]

A: If you don't understand why the patient—why they're having pain, it would be standard of care to—if you don't know what's going on, that would be a—yes. The answer is, yes, a CT scan would be—it would provide more information. And then the other pieces of information that I remember were that she had had the x-ray at the other hospital which showed free air and that that had not been communicated to Dr. Yugueros or—and the emergency room at Northside also was not made aware of that as well. So that's my recollection

and that's just what Dr. Ashraf told me about the case.

Artisan filed a motion in limine to exclude this testimony, and during a pre-trial hearing, and at trial,³ the defendants argued that Dr. Alexander's testimony as to the standard of care should be excluded because the requirements of OCGA § 24–7–702,⁴ which governs the admission of expert testimony in civil cases, had not been met, in part because Dr. Alexander had not been provided all the data necessary to form an opinion.⁵ The trial court agreed and excluded the testimony, and the jury returned a defense verdict.

On appeal, the Court of Appeals reversed. In addressing the argument that

a trial court's decision about whether a witness is qualified to render an expert opinion should be reviewed for abuse of discretion only, and [...] that Dr. Alexander was not qualified as an expert and that her opinion was not buttressed by sufficient facts or data to be admissible[,]

Robles , supra at 328, 779 S.E.2d 139, the Court of Appeals stated that "this argument misses the mark entirely. The evidence was not offered as expert testimony under OCGA § 24–7–702 (b) ; it was offered as a party's admission against interest under OCGA § 9–11–32 (a) (2)."⁶ Id. However, this statement by the Court of Appeals does not accurately reflect the law.

Certainly, OCGA § 9–11–32 (a) (2) states that the deposition of a deponent designated under OCGA § 9–11–30 (b) (6)"may be used by an adverse party for any purpose," but that provision must be read in light of OCGA § 9–11–32 (a)'s overriding requirements that

[a]t the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying , may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions [.]

(Emphasis supplied.) OCGA § 9–11–32 (a) (2) is simply one of those "following provisions"; it does not create a rule of evidence that allows any deposition taken under OCGA § 9–11–30 (b) (6) to be admitted at trial in its entirety as "an admission against interest," but provides for the admission of the deposition when that admission is permitted under relevant rules of evidence.⁷ And, when testifying as to the medical standard of care, OCGA § 24–7–702 is a relevant rule of evidence, and an appellate court is to uphold the trial court's decision on the admission of such evidence, absent an abuse of the trial court's discretion. See Hankla v. Postell , 293 Ga. 692, 694–695, 749 S.E.2d 726 (2013).

Under OCGA § 24–7–702, it is the role of the trial court to act as a gatekeeper of expert testimony. See HNTB Georgia, Inc. v. Hamilton–King , 287 Ga. 641, 645 (2), 697 S.E.2d 770 (2010). This role is not extinguished simply because deposition testimony, including expert testimony, is secured under OCGA § 9–11–30 (b) (6). Although Robles argues that the notice of deposition served on Artisan required that Artisan provide and prepare a witness as an expert, that Dr. Alexander possesses qualifications that could establish her as an expert witness, and that there was no proper objection to her qualifications, these matters were not addressed in the opinion of the Court of Appeals and are beyond the scope of this Court's writ of certiorari. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that Court for proceedings consistent with the opinion of this Court.

Judgment reversed and case remanded with direction.

All the Justices concur.

1 OCGA § 9–11–30 reads:

(a) When depositions may be taken.After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant or service made under subsection (f) of Code Section 9–11–4, except that leave is not required if a defendant has served a notice of taking deposition or otherwise sought discovery or if special notice is given as provided in paragraph (2) of subsection (b) of this Code section. The attendance of witnesses may be compelled by subpoena as provided in Code Section 9–11–45. The deposition of a person confined in a penal institution may be taken only by leave of court on such terms as the court prescribes.

(b) Notice of examination.

(1) General requirements. A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition, the means by which the testimony shall be recorded, and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person to be examined or the particular class or group to which he or she belongs. If a subpoena for the production of documentary and tangible evidence is to be served on the person to be examined, the designation of the materials to be produced, as set forth in the subpoena, shall be attached to, or included in, the notice.

(2) Special notice.Leave of court is not required for the taking of a deposition by plaintiff if the notice:

(A) States that the person to be examined is about to go out of the county where the action is pending and more than 150 miles from the place of trial, or is about to go out of the United States, or is bound on a voyage to sea, and will be unavailable for examination unless the deposition is taken before expiration of the 30 day period; and

(B) Sets forth facts to support the statement.

The plaintiff's attorney shall sign the notice, and said attorney's signature constitutes a certification by him or her that, to the best of his or her knowledge, information, and belief, the statement and supporting facts are true. If a party shows that, when he or she was served with notice under this paragraph, he or she was unable through the exercise of diligence to obtain counsel to represent him or her at the taking of the

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