Zarate-Martinez v. Echemendia, 299 Ga. 301

Background

Plaintiff Olga Zarate-Martinez sued for medical malpractice after an open laparoscopic tubal ligation allegedly perforated her bowel; she filed one expert affidavit (Dr. Errol Jacobi) with the complaint but later relied on testimony from Dr. Charles Ward (no affidavit filed) and later submitted affidavits from Dr. Nancy Hendrix.
Defendants moved to strike the expert testimony under OCGA § 24-7-702(c) and for summary judgment; the trial court struck Ward and Jacobi and granted plaintiff 45 days to file a competent expert affidavit.
Zarate-Martinez timely filed a Hendrix affidavit and later an untimely supplemental Hendrix affidavit; the trial court struck both Hendrix affidavits, dismissed the complaint under OCGA § 9-11-9.1(a), and rejected plaintiff’s constitutional challenges to § 24-7-702(c).
The Court of Appeals affirmed the merits but declined to reach the constitutional issues; the Supreme Court of Georgia granted certiorari to determine (1) whether the trial court distinctly ruled the constitutional claims, (2) whether the case falls within the Supreme Court’s exclusive jurisdiction, and (3) how to decide the appeal on the merits.
The Supreme Court held the trial court had distinctly ruled the constitutional claims, that exclusive appellate jurisdiction applied for some issues, rejected plaintiff’s constitutional attacks on § 24-7-702(c), affirmed striking Ward and Jacobi, but vacated the strikes of Hendrix’s affidavits and remanded for reconsideration under Dubois v. Brantley.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Were Zarate‑Martinez’s constitutional challenges to OCGA § 24‑7‑702(c) preserved and subject to Supreme Court jurisdiction?	Trial court’s brief footnote rejection preserved issues for appeal; case raises constitutional questions requiring Supreme Court review.	Court of Appeals: trial court did not expressly rule on constitutional issues, so they were not preserved.	Supreme Court: trial court distinctly ruled the constitutional claims; Supreme Court has exclusive jurisdiction over some of them.
Is OCGA § 24‑7‑702(c)(2)(A)–(B) unconstitutional (due process, vagueness, rational basis)?	The 3-of-5‑years active practice/teaching requirement is vague and not rationally related to state objectives, denying due process.	Statute is clear, provides judge-determined ‘‘sufficient frequency,’’ and furthers legitimate goals (reduce frivolous claims, control malpractice costs, preserve access to care).	Rejected plaintiff’s due process and vagueness challenges; statute survives rational‑basis review.
Does § 24‑7‑702(c) violate right to jury trial, equal protection, special privileges/immunities, separation of powers, or uniformity?	The statute improperly excludes evidence and creates arbitrary classifications or privileges, violating these constitutional protections.	The statute sets procedural/evidentiary rules (legislature’s power), distinguishes medical malpractice for rational policy reasons, does not grant irrevocable privileges, and operates uniformly within its class.	Court rejected all these constitutional claims; statute is procedural, rationally justified, not special/irreversible privilege, and constitutionally permissible.
Were the experts and affidavits properly excluded and the complaint rightly dismissed?	Jacobi, Ward, and Hendrix were not qualified under § 24‑7‑702(c); dismissal proper for failure to file competent affidavit.	Defendants argued experts lacked required recent practice/teaching per statute; dismissal required when no compliant affidavit supports complaint.	Court affirmed exclusion of Ward and Jacobi (Ward’s affidavit never filed; Jacobi’s affidavit failed to show required recent practice). But strikes of Hendrix’s affidavits were vacated and remanded for reconsideration under Dubois v. Brantley standard.

Key Cases Cited

Daubert v. Merrell Dow Pharm., 509 U.S. 579 (establishes federal gatekeeping standard for expert testimony)
General Elec. Co. v. Joiner, 522 U.S. 136 (courts review trial judge’s expert‑admissibility rulings for abuse of discretion)
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Daubert gatekeeping applies to all expert testimony, not only scientific)
Dubois v. Brantley, 297 Ga. 575 (clarifies that § 24‑7‑702(c) requires an expert to have an appropriate level of knowledge in the area, not necessarily that the expert personally performed the exact procedure)
Mason v. Home Depot, U.S.A., Inc., 283 Ga. 271 (upheld predecessor statute against equal protection challenges)