332 Ga. App. 879
Ga. Ct. App.2015Background
- In 2007 Austin Agerter suffered a C2 fracture; neurosurgeon Dr. Edward Mark applied a halo device with the horseshoe opening placed in the front (anchored in frontal bone or temples).
- Agerter later consulted Dr. Silcox who reversed the halo so the opening faced the back; Agerter sued Mark for malpractice alleging tissue damage from screws/placement.
- Mark’s prior routine practice had been to place halos with the opening front; after Agerter sued he changed his practice to place halos with the opening in the back.
- At trial Mark planned to call Alfred Iverson, president of the halo manufacturer, who would testify that either orientation is structurally acceptable and placement is left to the surgeon’s discretion.
- Agerter sought to introduce Mark’s post-incident practice change as evidence; Mark moved in limine to exclude such evidence as a subsequent remedial measure. The trial court mostly granted the motion but held the change admissible to impeach if Iverson’s testimony conflicted with Mark’s actions. Mark appealed that limited ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of subsequent remedial measures | Agerter: Mark’s change to placing halos with opening in back shows negligence and is admissible for impeachment | Mark: Change is a subsequent remedial measure barred by OCGA § 24-4-407 and not contradictory to Iverson’s testimony | Court: Reversed part of trial court — evidence of Mark’s change is not admissible for impeachment because Iverson’s testimony does not conflict with Mark’s later practice |
Key Cases Cited
- One Bluff Drive v. K. A. P., Inc., 330 Ga. App. 45 (2014) (standard for reviewing abuse of discretion on motions in limine)
- Thomas v. State, 330 Ga. App. 67 (2014) (abuse of discretion review principles)
- Forsyth County v. Martin, 279 Ga. 215 (2005) (motions in limine and careful exercise of judicial power)
- CNL APF Partners v. DOT, 307 Ga. App. 511 (2011) (exclusion of irrelevant evidence)
- Housing Auth. of Macon v. Younis, 279 Ga. App. 599 (2006) (error where evidence could never be admissible)
- Brooks v. Cellin Mfg. Co., 251 Ga. 395 (1983) (impeachment exception applied where defendant’s testimony created misleading impression)
- McCorkle v. Dept. of Transp., 257 Ga. App. 397 (2002) (discussion of remedial measures rule and impeachment exception)
- Studard v. Dept. of Transp., 219 Ga. App. 643 (1995) (caution that impeachment exception must be narrowly applied)
- Russell v. Parkford Mgmt. Co., 235 Ga. App. 81 (1998) (exceptions to remedial measure ban must be applied judiciously)
- APAC-Georgia v. Padgett, 193 Ga. App. 706 (1989) (admission of remedial measures to correct misleading testimony)