MCMILLIAN, P. J., COOMER, J. and SENIOR APPELLATE JUDGE
PHIPPS.
COOMER, JUDGE
On
September 9, 2014, Blair Zakas was involved in a car accident
with Curtis Jackson and his wife Audrey Jackson. On October
30, 2015, the Jacksons filed a complaint against Zakas
seeking damages for medical expenses resulting from the
accident.[1] During a five-day jury trial in 2018,
Zakas admitted liability for the collision, but disputed that
she caused Jackson's injuries and also disputed the
amount of damages that should have been awarded. The jury
awarded Jackson $734, 563.78. Zakas appeals the denial of her
motion for new trial and argues: (1) the trial court erred by
applying the wrong legal standard when it limited the
testimony of her biomechanical expert and prohibited him from
testifying that the force generated in the collision was
insufficient to cause the herniated discs in Jackson's
neck and back, and (2) the trial court erred in failing to
grant her motion for directed verdict on Jackson's claim
for future medical expenses. Finding no error, we affirm.
1.
Zakas argues that the trial court erred by applying the
incorrect legal standard and, as a result, improperly limited
the testimony of her biomechanical expert. Specifically, she
alleges that the trial court should have allowed the
biomechanical expert to testify as to his opinion that the
force generated in this collision could not have caused
Jackson's spinal injuries. Pretermitting whether the
trial court applied the correct standard in limiting the
testimony, the record shows that Zakas waived this argument.
Prior
to trial, Jackson filed a motion in limine in which he sought
to prevent the expert from testifying as to the specific
cause of any injury to Jackson. At a hearing on that motion,
Zakas's counsel initially stated that he believed that
the expert could "testify as to the forces specific to
this accident and the forces specific to this accident on Mr.
Jackson, as to whether those forces were strong enough or not
strong enough to cause the specific claimed injuries in this
case." After discussion between the court and the
parties, Zakas's counsel altered his position, and said
that he did not think he would "ever get to the ultimate
question, and that was the whole point, is I don't
believe that the question [asked of the expert] will be,
based upon your information, knowledge, expertise, was the -
were the forces contained in this accident - did they cause
the disk herniations as alleged by Mr. Jackson. That question
is not the question that's going to be asked."
Following the court's ruling that the expert "shall
not be permitted to give an opinion about the precise cause
of any specific injury," Zakas's counsel responded:
As long as - I'm okay with that. I guess my clarification
is - I didn't - was to making sure that he's able to
give his testimony [compliant with the court's order],
that will be fine. I don't need him to say it did not -
if the concern is [the expert] is going to say it could not
have caused, then I think we can work with that."
During
trial, Zakas's counsel asked the expert whether "the
cervical herniation alleged in this case would have occurred
as a result of this accident." After Jackson objected,
counsel offered to rephrase the question in order to comply
with the court's decision on the motion in limine. At no
point did Zakas's counsel argue that the question was
consistent with the order on the motion in limine, or ask the
trial court to reconsider its order. Essentially, Zakas's
counsel withdrew his question and replaced it with one that
complied with the trial court's order.[2]
By
representing to the trial court that he would not ask the
expert whether "the forces contained in this accident
[caused] disk herniations as alleged by Mr. Jackson,"
and by electing to rephrase his question at trial to comply
with the court's prior ruling, we find that Zakas has
waived this issue.
This court has held that no matter how erroneous the ruling
might have been (and we express no opinion on this question),
a litigant cannot submit to a ruling, acquiesce in the
ruling, and still complain of same. He is required to stand
his ground and fight in order to successfully enumerate as
error an erroneous ruling by the trial judge. Acquiescence
completely deprives him of the right to complain further; he
has agreed that the trial court's ruling was correct by
submitting to it. Failure to object to the procedure amounts
to waiver.
Robinson v. Moonraker Assoc., Ltd., 205
Ga.App. 597, 598 (423 S.E.2d 44) (1992) (citations and
punctuation omitted).
Furthermore,
when Zakas's counsel's said that he was not going to
ask whether "the forces contained in this accident - did
they cause the disk herniations as alleged by Mr.
Jackson," he affirmatively waived plain error review of
the issue. Moreover, he also told the trial court after its
ruling that he was "okay with that." See Shaw
v. State, 292 Ga. 871, 873 (2) n. 3 (742 S.E.2d 707)
("[A]ffirmative waiver, as opposed to mere forfeiture by
failing to object, prevents a finding of 'plain
error.'" (citation omitted)); United States v.
Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) ("It
is apparent . . . that the appellant consciously waived the
issue that he now seeks to debate. . . . A party who
identifies an issue, and then explicitly withdraws it, has
waived the issue.")
2.
Zakas next argues that the trial court erred in failing to
grant a directed verdict on Jackson's claim for future
medical expenses because Jackson failed to meet his burden of
proving future medical costs with a reasonable degree of
certainty. We disagree.
"A
plaintiff seeking to recover special damages for medical
expenses has the burden of proving his losses in such manner
as can permit calculation thereof with a reasonable degree of
certainty." Whitley v. Ditta, 209 Ga.App. 553,
554 (1) (434 S.E.2d 108) (1993) (citations omitted).
"This generally requires evidence that medical expenses
in a certain amount were incurred in connection with
treatment of the injury involved in the subject
litigation." Id. "A directed verdict or
j.n.o.v. is required where there is no conflict in the
evidence as to any material issues and the evidence
(construed in favor of the nonmovant) demands a particular
verdict." Hart v. Shergold, 295 Ga.App. 94, 96
(1) (670 S.E.2d 895) (2008) (citations, punctuation, and
footnotes omitted). "Thus, the standard of appellate
review of a trial court's denial of a motion for directed
verdict or of a motion for j.n.o.v. is the any evidence
test." Id.
Here,
the record supports the jury's award of future medical
expenses. Two different doctors testified to Jackson's
future medical needs. The first doctor testified that Jackson
might need an annual radiofrequency ablation. See Massie
v. Ross, 211 Ga.App. 354, 354 (1) (439 S.E.2d 3) (1993)
(testimony from doctor that the appellee would "likely
require future surgery in order to have a chance at a full
recovery" was sufficient to authorize an award of future
medical expenses). A "patient ledger" introduced
into evidence detailing Jackson's prior medical
procedures shows that a radiofrequency ablation costs at
least $1210. See Massie 211 Ga.App. at 354 (1)
(finding sufficient evidence to prove cost of ...