Zarate-Martinez v. Echemendia

• Decision Date: 05 July 2016
• Docket Number: S15G1446
• Citation: 788 S.E.2d 405,299 Ga. 301
• Parties: Zarate–Martinez v. Echemendia et al.
• Court: Georgia Supreme Court

299 Ga. 301

788 S.E.2d 405

Zarate–Martinez

v.Echemendia et al.

S15G1446

Supreme Court of Georgia.

Decided: July 5, 2016

Beverly B. Bates, Bates & Baum, for Appellant.

Daniel James Huff, Taylor Marie Tribble, Randolph Page Powell, Jr., Huff, Powell & Bailey, LLC, for Appellees.

MELTON

, Justice.

In March 2008, Olga Zarate–Martinez filed a medical malpractice complaint against Dr. Michael D. Echemendia, Atlanta Women's Health Group, P.C., Atlanta Women's Health Group, II, LLC, and North Crescent Surgery Center, LLC (collectively “Echemendia”), seeking damages for injuries she sustained during an open laparoscopic tubal ligation

that was allegedly negligently performed and which resulted in a perforated bowel. Zarate–Martinez attached to her complaint an affidavit from Dr. Errol G. Jacobi. She later identified Dr. Charles J. Ward as an expert for summary judgment purposes, but she never submitted an affidavit from Dr. Ward in support of her complaint. Echemendia deposed Dr. Ward and Dr. Jacobi, moved to strike the testimony from both doctors on the grounds that they did not qualify as experts under OCGA § 24–7–702 (c), and sought summary judgment.

Zarate–Martinez responded to the merits of Echemendia's motion and challenged the constitutionality of OCGA § 24–7–702 (c)

, asserting that the statute denied her the right to a jury trial and denied her access to the courts, denied her due process and equal protection of the laws, violated separation of powers, was a law that made irrevocable grants of special privileges and immunities, and was a special law not of a general nature. Without any reference to the constitutional issues, on February 21, 2013, the trial court issued an order striking both experts' testimony, but granted Zarate–Martinez 45 days in which to file an affidavit from a competent expert witness.

Within 45 days of the February 21 order, Zarate–Martinez submitted an affidavit from Dr. Nancy W. Hendrix, but Echemendia moved to strike this affidavit as well on the grounds that it did not adequately demonstrate Hendrix's qualifications under OCGA § 24–7–702 (c)

. Zarate–Martinez then filed a supplemental affidavit from Hendrix outside of the 45–day time frame, and, in her reply to the motion to strike, reasserted her constitutional challenges to OCGA § 24–7–702 (c). Zarate–Martinez also asserted a new constitutional claim, specifically, that the provisions of OCGA § 24–7–702 (c) (2) (A) and (B) were unconstitutionally vague. Despite these arguments, however, the trial court applied the terms of OCGA § 24–7–702 (c) and granted the motion to strike both of Hendrix's affidavits on July 17, 2014.¹

With Zarate–Martinez being left with no affidavits from qualified medical experts to support her medical malpractice claim, the trial court went on to dismiss Zarate–Martinez's complaint due to her failure to provide the necessary expert affidavit as required by OCGA § 9–11–9.1 (a)

. See OCGA § 9–11–9.1 (e) (“If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed on or before the close of discovery, that said affidavit is defective, the plaintiff's complaint shall be subject to dismissal for failure to state a claim”).

In its July 17 order striking Hendrix's affidavits and dismissing Zarate–Martinez's case, the trial court only referenced Zarate–Martinez's previously raised constitutional challenges to OCGA § 24–7–702 (c)

in two footnotes, stating:

This statute is a codification of the Supreme Court's holding in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)

. See Butler v. Union Carbide Corp. , 310 Ga.App. 21, 32, 712 S.E.2d 537 (2011) (“Twelve years after Daubert , the Georgia Legislature in 2005 passed [the predecessor statute to OCGA § 24–7–702 ], which adopted the Daubert test for expert opinion testimony in civil actions in Georgia's state courts.”). And Georgia courts are to interpret and apply OCGA § 24–7–702 by “draw[ing] from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. , [supra]; General Electric Co. v. Joiner , 522 U.S. 136 [118 S.Ct. 512, 139 L.Ed.2d 508] (1997) ; Kumho Tire Co. Ltd. v. Carmichael , 526 U.S. 137 [119 S.Ct. 1167, 143 L.Ed.2d 238] (1999) ; and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.” OCGA § 24–7–702 (f).... Zarate–Martinez challenges the constitutionality of Section 702. “[T]he constitutionality of a statute is presumed, and ... all doubts must be resolved in favor of its validity.” Albany Surgical, P.C. v. Georgia Dept. of Community Health , 278 Ga. 366, 368, 602 S.E.2d 648 (2004). Daubert has survived constitutionality challenges, and the Court declines to hold that Section 702 violates due process requirements or is otherwise unconstitutional.

The Court of Appeals affirmed the trial court's ruling on merits, but did not reach the constitutional issues, finding that the trial court had not expressly ruled upon them. Zarate–Martinez v. Echemendia , 332 Ga.App. 381, 772 S.E.2d 826 (2015)

.

This Court granted Zarate–Martinez's petition for a writ of certiorari to determine (1) whether the Court of Appeals erred in holding that Zarate–Martinez's constitutional challenges to OCGA § 24–7–702 (c)

were not distinctly ruled on by the trial court and thus not preserved for appeal; (2) if so, whether any of Zarate–Martinez's constitutional claims bring this case within this Court's exclusive appellate jurisdiction over all cases in which the constitutionality of a law has been drawn into question; and (3) if this case is within this Court's exclusive appellate jurisdiction and the Court of Appeals opinion must therefore be vacated, how this Court should decide Zarate–Martinez's appeal. For the reasons that follow, we conclude that (1) the trial court did distinctly rule on Zarate–Martinez's constitutional challenges to OCGA § 24–7–702 (c)

; (2) there are constitutional issues raised by Zarate–Martinez and ruled upon by the trial court that bring this case within this Court's exclusive appellate jurisdiction, but the constitutional challenges to OCGA § 24–7–702 (c) raised by Zarate–Martinez are without merit; and (3) the trial court's ruling to strike two of Zarate–Martinez's experts' testimony was correct, but the decision to strike the expert affidavit of Dr. Hendrix must be reconsidered by the trial court in light of this Court's decision in Dubois v. Brantley , 297 Ga. 575, 775 S.E.2d 512 (2015). Accordingly, we vacate the ruling of the Court of Appeals, vacate the decision of the trial court with respect to its application of OCGA § 24–7–702 (c), and remand this case to the trial court with direction that it reconsider the admissibility of Dr. Hendrix's testimony in light of this Court's decision in Dubois , supra.

1. In its order dismissing Zarate–Martinez's medical malpractice complaint, the trial court specifically addressed Zarate–Martinez's constitutional challenges to OCGA § 24–7–702

. Indeed, the trial court referenced the fact that the constitutionality of the statute is to be presumed, and went on to specifically reject the idea that the statute “violates due process requirements or is otherwise unconstitutional.” In other words, the trial court

found, in relevant part, that the constitutional challenges raised by [Zarate–Martinez] were without merit.... We thus conclude that the superior court's ruling is effectively a distinct ruling on the constitutional issues and is a sufficient ruling to permit [Zarate–Martinez] to raise [her] constitutional challenges on appeal.

(Footnote omitted). Rouse v. Dept. of Natural Resources , 271 Ga. 726, 728, 524 S.E.2d 455 (1999)

.

2. With respect to the constitutional challenges to OCGA § 24–7–702

that were raised and ruled upon below, this Court “shall exercise exclusive appellate jurisdiction in ... all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question.” Ga. Const. of 1983 Art. VI, § VI., Par. II (1). However, “[w]here a law has been held to be constitutional as against the same attack being made, the case requires merely an application of unquestioned and unambiguous constitutional provisions and jurisdiction of the appeal is in the Court of Appeals.” (Citation omitted.) Zepp v. Mayor & Council of the City of Athens , 255 Ga. 449, 451, 339 S.E.2d 576 (1986). As explained more fully below, although one of the constitutional attacks raised by Zarate–Martinez here has been previously rejected by this Court with respect to the former version of OCGA § 24–7–702 (c), see Mason v. Home Depot, U.S.A., Inc. , 283 Ga. 271, 658 S.E.2d 603 (2008),² none of the other specific constitutional attacks against OCGA § 24–7–702 (c) made by Zarate–Martinez in the instant case and asserted here on appeal have been previously addressed by this Court, and this Court retains the exclusive jurisdiction to resolve them. Accordingly, we must vacate the opinion of the Court of Appeals in this case and address all of the constitutional claims including those which confer exclusive jurisdiction over this case upon this Court.

OCGA § 24–7–702 (c) (2) (A) and (B)

state in relevant part:

(c) [I]n professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:

...

(2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:

(A) The active practice of such area of specialty of his or her profession for at least three of the last five years , with sufficient frequency to establish an

...