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Robles v. Yugueros

Court of Appeals of Georgia

October 26, 2017

ROBLES et al.
v.
YUGUEROS et al.

          Barnes, Presiding Judge.

         In Yugueros v. Robles, 300 Ga. 58 (793 S.E.2d 42) (2016), the Supreme Court of Georgia reversed our decision in Robles v. Yugueros, 335 Ga.App. 324 (779 S.E.2d 139) (2015), then remanded the case to this Court for proceedings consistent with its opinion. Yugueros, 300 Ga. at 67. We thus vacate our earlier decision, and for reasons discussed below, we affirm.

         As set forth by the Supreme Court, this case arose from the following facts.

Iselda Moreno, wife of Rudy Robles, received liposuction, buttock augmentation, and abdominoplasty surgery performed by Dr. Patricia Yugueros of Artisan Plastic Surgery, LLC ("[medical practice group]") 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 postoperative 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.

Yugueros, 300 Ga. at 58.

         Robles, individually, as Moreno's surviving spouse, and as administrator of Moreno's estate, sued Dr. Yugueros and the medical practice group. He alleged that his wife had died of abdominal compartment syndrome, caused by abdominal free air that had resulted from a perforated stomach. Robles claimed that Dr. Yugueros had committed medical malpractice - not during the surgery, but thereafter - by failing to recognize clinical evidence of his wife's post-operative complications that arose and caused her death.[1] Robles sought to hold the medical practice group vicariously liable.

          Dr. Yugueros and the medical practice group denied liability; further, they designated Drs. Violette and York, as well as GMC, as nonparties at fault.

         The case proceeded to trial in November 2014. The jury returned a defense verdict, and judgment was entered thereon. Robles appealed to this Court, contesting various evidentiary rulings, curtailment of his closing argument, and the placement of nonparties on the verdict form for purposes of apportionment.

         When this case was initially before us, Robles, 335 Ga.App. at 324, this Court found as reversible error the trial court's exclusion of certain deposition testimony given by the medical practice group's designated OCGA § 9-11-30 (b) (6) witness. In light of the Supreme Court's reversal based on that issue, see Yugueros, 300 Ga. at 67, we resume our review of this case.

         1. First, we revisit Robles's contention that the trial court erred by excluding certain testimony given by the OCGA § 9-11-30 (b) (6) witness, Dr. Diane Z. Alexander, a physician, founder, and co-owner of the medical practice group. Pertinent here, she deposed that when Dr. Yugueros was told about Robles's wife's ongoing, post-surgical abdominal pain, the standard of care required the physician to employ a CT scan to ascertain the underlying cause.[2] As noted above, however, Dr. Yugueros neither ordered a CT scan, nor procured the radiology report from GMC.

         Dr. Yugueros and the medical practice group moved to exclude the cited deposition testimony. At a pretrial hearing conducted in January 2014, their counsel argued that Robles had failed to establish that the deponent's standard-of-care opinion was "based upon sufficient facts or data" as required by OCGA § 24-7-702 (b), [3] which is applicable when determining the admissibility of expert testimony.[4]

          In response, Robles's counsel made no assertion that the statutory provision was met. Counsel instead took the position,

[We] raised in our 30 (b) (6) notice [that] [the medical practice group] provide someone that can give testimony about the care and treatment rendered by Patricia Yugueros M.D. to [Robles's wife]. So, whether Dr. Alexander took to that seriously, whether she did enough preparation, that's her risk. [The medical practice group] is bound by the designee that they put to testify on their behalf. That's black letter law. . . . I can understand why they don't want that to come in but she is bound by the fact she's designated as a 30 (B) (6) witness. . . . That's not my problem in terms of admissibility.

         After additional argument on behalf of the parties - including a proposal by counsel for Dr. Yugueros that Dr. Alexander be allowed to "review the medical records and be able to respond to . . . questions, " the trial court ruled that the cited deposition testimony would be excluded, but that such ruling was "without prejudice to raising [the issue]" at trial. As the court explained, Robles could seek to introduce Dr. Alexander's medical opinion at trial, based upon "what the actual evidence is" at that time. But at trial, Robles's counsel merely reasserted his previous argument, and the deposition testimony was not presented to the jury.

          When this case was initially before us, this Court determined that the exclusion of the deponent's medical opinion was reversible error. Robles, 335 Ga.App. at 325. We pointed out that the evidence was not offered as expert testimony under OCGA § 24-7-702 (b); noted that Robles sought to introduce the testimony as a party's admission against interest under OCGA § 9-11-32 (a) (2); and recited that such statutory paragraph provided for a properly-noticed deposition of an OCGA § 9-11-30 (b) (6) witness to be admitted against a party who was represented at the deposition, subject to the rules of evidence. Robles, 335 Ga.App. at 328. Thereupon, this Court concluded, "[Robles] was entitled under OCGA § 9-11-32 (a) (2) to introduce the deposition testimony into evidence." Robles, 335 Ga.App. at 329.

         The Supreme Court granted certiorari to determine,

whether [the Court of Appeals] 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.

Yugueros, 300 Ga. at 58. After examining the interplay among several Code sections, the Supreme Court held,

OCGA § 9-11-32 (a) (2) . . . 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. And, when testifying as to the medical standard of care, OCGA § 24-7-702 is a relevant rule of evidence[.]

(Footnote omitted.) Yugueros, 300 Ga. at 67.

         In light of that holding, we conclude that Robles has failed to demonstrate reversible error. As the proponent of the expert testimony, Robles had the duty to show its admissibility. HNTB Ga. v. Hamilton-King, 287 Ga. 641, 646 (2) (697 S.E.2d 770) (2010) ("[R]egardless of an expert's experience or qualifications, the proffering party bears the burden of presenting evidence of reliability in order to met the standards of [OCGA § 24-7-702]."); accord United States v. Frazier, 387 F.3d 1244, 1260 (III) (A) (11th Cir. 2004) (reiterating that the proponent of the expert opinion has the burden of showing its admissibility).[5] Yet, Robles made no claim to the trial court that Dr. Alexander's medical opinion met the cited requirement of OCGA § 24-7-702 (b), choosing instead to seek admission of the evidence solely on the ground that it was obtained during the deposition of the medical practice group's OCGA § 9-11-30 (b) (6) witness. But as the Supreme Court has since clarified, the trial court's role of gatekeeper under OCGA § 24-7-702 "is not extinguished simply because deposition testimony, including expert testimony, is secured under OCGA § 9-11-30 (b) (6)." Yugueros, 300 Ga. at 67.

         In his opening brief to this Court, Robles asserts that "Dr. Alexander is an experienced plastic surgeon, " that "[she] satisfied both prongs of OCGA § 24-7-702 (c), " that any lack of personal knowledge about the underlying events and Robles's wife's medical record "does not impact Dr. Alexander's qualifications, " and that "[he (Robles)] should not be penalized because Dr. Alexander was insufficiently prepared."[6]These conclusory assertions, however, do not respond to the specific challenge raised under OCGA § 24-7-702 (b). See generally HNTB Ga., 287 Ga. at 646 (2) (concerning proffering party's burden in the trial court); Dixon v. MARTA, 242 Ga.App. 262, 266 (4) (529 S.E.2d 398) (2000) (reiterating that legal analysis requires "at a minimum, a discussion of the appropriate law as applied to the relevant facts"). Moreover, Robles has made no effort to cite this Court to any evidence that the trial court failed to consider in deciding the issue of admissibility. And this Court has no duty to "cull the record - in this case [35] volumes - on an appellant's behalf" to support a position not advanced below. Carlisle v. Abend, 288 Ga.App. 150, 151 (1) (653 S.E.2d 388) (2007); see Burrell v. State, 301 Ga. 21, 26 (3) (799 S.E.2d 181) (2017) (refusing to reach merits of evidentiary issue because "[i]t is not this Court's job to cull the record on behalf of Appellant to find alleged errors"); Lowery v. Atlanta Heart Assoc., 266 Ga.App. 402, 405 (2) (597 S.E.2d 494) (2004) (deciding that the appellant, "[h]aving taken [one] position throughout the entire course of this litigation [concerning expert testimony], cannot raise the contrary argument for the first time on appeal"); see generally Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 S.E.2d 389) (2002) (reiterating principles that "[a litigant] must stand or fall upon the position taken in the trial court" and that "[f]airness to the trial court and to the parties demands that legal issues be asserted in the trial court") (citation and punctuation omitted); Mays v. Ellis, 283 Ga.App. 195, 199 (2) (641 S.E.2d 201) (2007) (finding waiver of whether expert testimony was admissible under expert witness statute, where party failed to properly preserve issue); Cherokee Nat. Life Ins. Co. v. Eason, 276 Ga.App. 183, 187 (2) (622 S.E.2d 883) (2005) (reciting principle that a party cannot "complain of an error which its own conduct procured or aided in causing").

         For all these reasons, Robles has failed to carry his burden as appellant to show an abuse of discretion by the trial court.[7] Consequently, this contention provides no basis to disturb the judgment.

         2. Robles's remaining challenges to the judgment - which we did not reach when this case was initially before us[8] - relate to the alleged fault of nonparties and other matters of apportionment.

          As noted above, the defendants designated three nonparties as having fault in this case: (i) GMC, which operated the emergency room facility where Robles's wife sought relief from her pain on June 27, three days after her surgery; (ii) Dr. Violette, the emergency medicine physician at GMC's emergency room who ordered an abdominal x-ray of Robles's wife's kidney, ureter and bladder ("KUB"), which he interpreted as unremarkable, then prescribed her pain medications and discharged her; and (iii) Dr. York, the radiologist who later reviewed the same KUB at GMC, identified a suspicion of abdominal free air, posted in Robles's wife's electronic medical record his recommendation for a CT scan, but did ...


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