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Davis v. Osinuga

Court of Appeals of Georgia

December 8, 2014

DAVIS et al.
v.
OSINUGA et al

Continuance. DeKalb State Court. Before Judge Ross.

Joseph H. King, Jr., for appellants.

Huff, Powell & Bailey, Daniel J. Huff, The Jarman Firm, Camille N. Jarman, for appellees.

ELLINGTON, Presiding Judge. Phipps, C. J., and McMillian, J., concur.

OPINION

Ellington, Presiding Judge.

Diane Eldredge Davis and Jesse Randolph Eldredge (collectively, " the Eldredges" ), as the survivors of their father,

Page 38

Jesse Belton Eldredge, brought this medical malpractice wrongful death action in [330 Ga.App. 279] the State Court of DeKalb County against Oladayo Osinuga, M.D., and against his employer, East Point Primary Care Center, P.C. (collectively " Dr. Osinuga" ). When the trial court called the case for trial, the Eldredges applied for a continuance on the basis that, as of the preceding business day, they were unable to present the testimony of their only expert witness. After a hearing, the trial court denied the Eldredges' application for a continuance. Because the Eldredges were unable to move forward with their case without expert testimony, the trial court also dismissed the Eldredges' action for want of prosecution. The Eldredges appeal, contending, inter alia, that the trial court abused its discretion in denying their application for a continuance.

A motion for continuance of a trial is properly addressed to the sound legal discretion of a trial judge,[[1]] who is in control of the management of the case in court. The exercise of that discretion will not be disturbed by the appellate courts unless the discretion is manifestly abused.

(Citations and punctuation omitted.) In re Estate of Jackson, 241 Ga.App. 392, 393-394 (1) (526 S.E.2d 884) (1999).[2]

The record shows the following material facts. The Eldredges' action concerned Dr. Osinuga's treatment of their father in April 2007. They filed their action in April 2009, together with an affidavit executed by Kelly Thrasher, M.D., as required by OCGA § 9-11-9.1.[3] In January 2013, after Dr. Thrasher was arrested on felony and misdemeanor charges, the Georgia Composite Medical Board suspended his license to practice medicine.

[330 Ga.App. 280] In April 2013, Dr. Osinuga, through his counsel, inquired whether the Eldredges still planned to call Dr. Thrasher as an expert witness at trial. He advised them that he intended to oppose any attempt to continue the case because of Dr. Thrasher's legal problems.

The trial court issued jury trial calendars that included the Eldredges' case in September 2011, July 2012, and October 2013, but the case was either continued or not reached each time. On January 1, 2014, the trial court issued a notice that the case was on a jury trial calendar for the week of February 10, 2014. On January 14, Dr. Thrasher was arrested for practicing medicine without a license. On February 7, the business day before trial was to begin in the Eldredges' case, the Superior Court of Fulton County modified the conditions of Dr. Thrasher's bail, specifying that he could not give his medical opinion on any matter, including testifying in any legal proceedings. This condition prevented the Eldredges from calling Dr. Thrasher as an expert witness at trial. On February 10, the day trial was to begin, the Eldredges applied for a continuance.

At the hearing on the Eldredges' request for a continuance, their counsel conceded that they could not prove their case without expert opinion testimony and that, with Dr. Thrasher's criminal charges unresolved, they could not state that they ...


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