Shane H. Berryhill v. Dale P. Daly
348 Ga. App. 221
Ga. Ct. App.2018Background
- Plaintiff Shane Berryhill underwent cardiac surgery with postoperative instructions from Dr. Dale Daly advising no strenuous activity, lifting, bending, or stooping for about a week; instructions were provided to Berryhill and his wife and included in discharge materials.
- Five days post-op, Berryhill climbed an approximately 18-foot deer stand, fainted (allegedly from antihypertensive medication), and suffered serious injuries.
- Berryhill sued Dr. Daly for medical malpractice (and initially sued Walgreens and the deer-stand manufacturer, who were later dismissed).
- At trial the court admitted a demonstrative, fully assembled deer stand on courthouse grounds (not identical to the actual stand) and instructed the jury on assumption of the risk and avoidance of consequences; Berryhill objected to the demonstrative and the assumption-of-risk charge.
- The jury returned a verdict for Dr. Daly; Berryhill’s motion for new trial was denied and he appealed; Daly cross-appealed limited issues related to expert testimony and pleadings as admissions.
- The Court of Appeals reversed, holding the assumption-of-risk instruction was improper and ordering a new trial, but upheld the avoidance-of-consequences instruction, admission of the demonstrative exhibit, and the trial court’s rulings on expert testimony and pleadings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether assumption-of-the-risk jury charge was proper | Berryhill: no charge should be given; if given, must require subjective knowledge of specific risk | Daly: charge was proper (argued plaintiff disregarded post-op restrictions) | Reversed: instruction improper because no evidence Berryhill subjectively knew syncope was a risk of medication; error not harmless |
| Whether avoidance-of-consequences charge was proper | Berryhill: court erred in charging avoidance | Daly: charge proper because plaintiff failed to seek clarification and could have avoided harm | Affirmed: evidence supported avoidance doctrine; question for jury |
| Admissibility of demonstrative deer-stand exemplar | Berryhill: exemplar was too dissimilar and prejudicial | Daly: demonstrative was permissible to illustrate stand features | Affirmed: trial court did not abuse discretion; jury instructed exemplar not admitted evidence and plaintiff could explain differences |
| Admissibility/limits of plaintiff's pharmacy expert | Daly: expert should have been excluded for testifying beyond expertise | Berryhill: expert qualified to testify on meds and side effects | Affirmed: trial court properly limited testimony and did not abuse discretion in allowing expert |
Key Cases Cited
- Smith v. Norfolk Southern Railway Co., 337 Ga. App. 604 (construing evidence in support of verdict on appeal)
- Vaughn v. Protective Ins. Co., 243 Ga. App. 79 (assumption of risk requires subjective knowledge of specific risk)
- Russell v. Superior K-9 Svc., Inc., 242 Ga. App. 896 (evidence for assumption-of-risk charge need only be slight)
- Teems v. Bates, 300 Ga. App. 70 (contrast: activity risk tied to defendant’s conduct may justify assumption-of-risk charge)
- Hillman v. Carlton Co., 240 Ga. App. 432 (knowledge of risk must be actual and subjective)
- Owens-Illinois, Inc. v. Bryson, 138 Ga. App. 78 (assumption of risk requires knowledge and intelligent acquiescence)
- Jimenez v. Morgan Drive Away, Inc., 238 Ga. App. 638 (erroneous assumption-of-risk charge can require retrial)
- Beringause v. Fogleman Truck Lines, Inc., 200 Ga. App. 822 (no assumption-of-risk on retrial if evidence unchanged)
- Walker v. Bruno’s Inc., 228 Ga. App. 589 (trial court must charge law supported by evidence; avoidance doctrine)
- Carrandi v. Sanders, 188 Ga. App. 562 (avoidance doctrine explained)
- McGee v. Jones, 232 Ga. App. 1 (abuse-of-discretion review for demonstrative evidence)
- Yang v. Smith, 316 Ga. App. 458 (abuse-of-discretion standard for expert admission/motions in limine)
- Ashley v. State, 316 Ga. App. 28 (minimal requirements to qualify as expert witness)
- McReynolds v. Krebs, 307 Ga. App. 330 (pleadings’ opinions/conclusions are not admissions in judicio)