ROBLES et al.
YUGUEROS et al.
Barnes, Presiding Judge.
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.
forth by the Supreme Court, this case arose from the
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
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.
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. Robles sought to
hold the medical practice group vicariously liable.
Yugueros and the medical practice group denied liability;
further, they designated Drs. Violette and York, as well as
GMC, as nonparties at fault.
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
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
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. As noted above, however, Dr. Yugueros
neither ordered a CT scan, nor procured the radiology report
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),  which is
applicable when determining the admissibility of expert
response, Robles's counsel made no assertion that the
statutory provision was met. Counsel instead took the
[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.
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.
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.
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
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.
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). 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.
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."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
 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
these reasons, Robles has failed to carry his burden as
appellant to show an abuse of discretion by the trial
court. Consequently, this contention provides no
basis to disturb the judgment.
Robles's remaining challenges to the judgment - which we
did not reach when this case was initially before
relate to the alleged fault of nonparties and other matters
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 ...