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Robert
Alan Luskin, Elissa B. Haynes, Atlanta, for Appellant.
Kurt G.
Kastorf, Robert Michael Coker, Atlanta, Makenzie Cabe
McAllister, for Appellee.
OPINION
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 Jacksons 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 Jacksons neck
and back, and (2) the trial court erred in failing to grant
her motion for directed verdict on Jacksons 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
Jacksons 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,
Zakass 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, Zakass 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 dont 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 thats going to be asked." Following the
courts ruling that the expert "shall not be permitted
to give an opinion about the precise cause of any specific
injury," Zakass counsel responded:
As long as - Im okay with that. I guess my clarification is
- I didnt - was to making sure that hes able to give his
testimony [compliant with the courts order], that will be
fine. I dont 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, Zakass counsel asked the expert whether "the
cervical herniation alleged
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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 courts
decision on the motion in limine. At no point did Zakass
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, Zakass counsel withdrew his question
and replaced it with one that complied with the trial courts
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 courts 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 courts 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
...