This is a product liability action arising from an incident in which a nozzle assembly of a fire extinguisher spontaneously exploded and separated from the canister. It caused a cloud of chemicals to disperse in Margaret Rose’s apartment, allegedly harming Rose. She sued the manufacturer of the fire extinguisher, Figgie International, Inc., whose motion in limine was granted so as to exclude evidence of similar spontaneous explosions of the same model extinguisher and to exclude evidence of Figgie’s subsequent recall of the extinguisher for a manufacturing defect that caused spontaneous explosions. At Rose’s request, the court also excluded evidence of psychiatric and psychological evaluations of Rose, which diagnosed Rose as suffering from psychiatric disorders that caused her to create or exaggerate her physical symptoms. In this interlocutory appeal we hold that the trial court erred in granting both motions in limine.
*849 Case No. A97A1495
Since 1980, Figgie has designed, manufactured, marketed, and sold a fire extinguisher known as the American LaFrance Model P-250MA. Figgie admits that in some of the fire extinguishers it manufactured between August and October 1985, the threads on the collar or spud of the extinguishers were slightly out of tolerance, meaning the diameter of the hole into which the valve was screwed was larger than it should have been. This manufacturing defect would sometimes result in the nozzle assembly spontaneously exploding and separating from the canister, the contents of which were under 190 psi of pressure. Figgie’s representative testified that unless an extinguisher was improperly cross-threaded when being recharged, or had been struck sideways with sufficient force to damage the valve, the defective threading was the only reasonable explanation for a spontaneous explosion and valve separation.
Figgie’s records show that by May 1990 it had received notice of over 50 incidents of spontaneous valve separation explosions involving this model. Later that month Captain Irvine of the DeKalb County Fire Department notified Figgie that four extinguishers of this model had recently exploded in DeKalb County. Figgie made no public announcements or warnings at that time.
During the night of September 4, 1990, as Rose and her children slept in their DeKalb County apartment, the nozzle assembly on their Figgie fire extinguisher model P-250MA spontaneously exploded and separated from the canister. Rose inhaled the chemicals released by the explosion while she evacuated her children from the apartment and made phone calls to get help. She alleges she suffered permanent lung damage as a result. The day following the incident, a maintenance employee of the apartment complex disposed of the exploded extinguisher without the knowledge or consent of Rose or Figgie. 1
In May 1991, Figgie issued a notice recalling its model P-250MA extinguishers manufactured during the August through October 1985 time period and specified the serial numbers, including the serial number of Rose’s extinguisher. The basis for the recall, which references Rose’s and the four other explosions in DeKalb County, was the valve threading defect.
Rose sued Figgie, asserting strict liability, negligent manufacture, breach of warranty, and failure to warn. She also sought puni *850 tive damages. Figgie moved to exclude evidence of the 50 other incidents of spontaneous explosions and of the recall notice. Ruling to exclude other-incident evidence, the court explained orally that without the extinguisher Rose could not establish that the other extinguishers were substantially similar, for she could not prove that hers had the same manufacturing defect as the others which exploded. At the hearing on the motion to reconsider the ruling, the court reiterated that “without the instrumentality, I don’t see how you can bring any substantially similar or any other incident in. There is nothing to compare it to. . . . You don’t have the instrumentality to compare to any other incident.” Accordingly, the court also excluded evidence regarding the recall notice. Rose appeals from these two rulings.
1. Decisions to exclude evidence of similar incidents are “reviewed for abuse of the trial court’s discretion. [Cits.]”
Whitley v. Gwinnett County,
(a) The court correctly held Rose must first establish that her extinguisher had the manufacturing defect at issue. Without that fact, it would be unnecessary to decide whether the 50 incidents involving other extinguishers with the defect were substantially similar. “In product liability actions, evidence of other incidents involving the product is admissible, and relevant to the issues of notice of a defect and punitive damages, provided there is a showing of substantial similarity. Without a showing of substantial similarity, the evidence is irrelevant as a matter of law.” (Citations and punctuation omitted.)
General Motors Corp. v. Moseley,
The court found the absence of Rose’s extinguisher precluded a
*851
showing that it had the same manufacturing defect as the other extinguishers. But “[i]t has often been held that the existence of a manufacturing defect in a products liability case may be inferred from circumstantial evidence.”
Firestone Tire &c. Co. v. King,
Similarly, in
Skil Corp.,
a saw’s blade guard did not close, injuring the plaintiff Lugsdin. Through no fault of either litigant, the saw became unavailable for inspection. Citing the evidence that the saw was new and had not been tampered with or altered, and the expert testimony that there was no other reasonable explanation for failure of the blade guard other than a defect in the saw’s spring mechanism, we concluded that “[circumstantial evidence may be used to establish the existence of a manufacturing defect at the time the product left the manufacturer, even where the product is consumed or destroyed in the use that resulted in the plaintiff’s injury. Based upon the evidence recited above . . ., there was sufficient evidence from which the jury could infer that the saw was defective when sold by the appellant-manufacturer.” (Citations omitted.)
Thus, even without the extinguisher, Rose could use circumstantial evidence to prove it had the same threading defect as the extinguishers in the other incidents. See
Central of Ga. R. Co. v. Butts,
(b) Circumstantial evidence relevant to prove a manufacturing defect may include evidence of the existence of the defect in goods produced at the same plant at around the same time. Citing
Browning v. Paccar, Inc.,
Other jurisdictions agree.
2
For example,
Embs v. Pepsi-Cola Bot
*853
tling &c.,
(c) Figgie nevertheless argues that similar incidents are only admissible in cases alleging a
design
defect, and not in cases alleging a
manufacturing
defect, as here. A design defect necessarily results in all products having the defect, whereas a manufacturing defect will only occur in those products which were improperly manufactured following design. But because a manufacturing defect involves the use of a systematic process, evidence that some goods produced during a certain time through a certain process had a defect is probative to show that other goods produced during that same time through the same process may also have the defect. See
Goss,
supra,
(d) Figgie next argues that
Firestone Tire &c. Co. v. King,
supra,
(e) A jury could infer from the circumstantial evidence that Rose’s extinguisher had the same threading defect as the extinguishers involved in the other 50 spontaneous explosions. Between 1980 and 1990 Figgie had manufactured approximately 900,000 fire extinguishers. Figgie admitted that during a specific three-month period in 1985 it manufactured 18,000 P-250MA extinguishers, some of *854 which contained a threading defect that would cause the nozzle assemblies from these extinguishers to spontaneously explode and separate from their canisters. Such explosions, in addition to explosions caused by improper recharging, in fact occurred over 50 times. Four were in DeKalb County. Figgie eventually recalled all P-250MA extinguishers manufactured during this three-month period, identifying them by serial number. The P-250MA extinguisher which spontaneously exploded in Rose’s DeKalb County apartment was identified by its serial number as manufactured by Figgie during the specific three-month period and as a product included in the recall notice. Even without the extinguisher, such circumstantial evidence is sufficient to establish Rose’s extinguisher had the threading defect.
(f) Figgie points out, as the cause of the explosion, that in Rose’s original complaint she alleged that on the day preceding the incident the apartment maintenance man had improperly recharged her extinguisher. Citing
Strozier v. Simmons U.S.A. Corp.,
Following substantial discovery Rose in fact had withdrawn the allegations of recharge, as conceded by Figgie’s counsel at oral argument. Even though these allegations may be used as evidence against Rose, they are not conclusive, and she is free to refute or explain them.
Strozier,
supra,
(g) The circumstantial evidence being sufficient to demonstrate a threading defect in Rose’s extinguisher, the next inquiry is whether the other 50 incidents were substantially similar to the incident in question so as to be admissible to prove notice and punitive damages.
Moseley,
supra,
2. Rose contends that the evidence of the product recall is similarly relevant. We agree. “The recall letter is admissible as long as there is first introduced some independent proof that the particular product in question suffered from the same defect. The recall letter
*855
alone is insufficient to create a jury issue of the presence of such a defect in the product. But, it is relevant on the question whether the defect was present when the [extinguisher] left the manufacturer.”
Harley-Davidson Motor Co. v. Daniel,
In sum, the trial court erroneously ruled that without the extinguisher there was no independent evidence that Rose’s extinguisher suffered from the same defect. Other circumstantial evidence reflects that Rose’s extinguisher had the threading defect. The court also erred in excluding the evidence regarding recall.
Case No. A97A1496
Figgie cross-appealed the ruling of the trial court excluding the testimony of Dr. David M. Davis, a psychiatrist, and Dr. W. James Powell, a psychologist, who would testify Rose has psychiatric disorders that explain the cause and extent of her alleged respiratory ailments. The ruling exceeded the court’s discretion and requires reversal.
Soon after the explosion, Dr. Cook, a pulmonologist, began treating Rose for respiratory problems. Despite a medical history of an apneic spell, seasonal hayfever and allergies, a punctured or damaged lung, and shortness of breath, she told Dr. Cook she had never experienced any type of respiratory problems previously. He has since treated her for chronic obstruction bronchitis, or a bronchospastic disorder, which in his first deposition he could not say to a reasonable medical certainty was caused by her inhalation of the airborne material arising from the explosion incident. He testified in a later deposition that based on the lack of any prior respiratory problems, he believed to a reasonable medical certainty the explosion caused her pulmonary disorders.
The court ordered Rose to undergo an exam from a pulmonologist (Dr. Wellman) hired by Figgie. Dr. Wellman detected audible wheezes in her lungs and determined she had an obstructive airways disease. But he also determined that she made an “extremely minimal” effort to cooperate with his instructions and to exhale maximally. He concluded that “she was trying to make me think that she *856 was actually sicker than she really is.” He further opined that her lung problems were not related to the explosion.
Dr. Burton, a county medical examiner, reviewed Rose’s medical records and the contents of the fire extinguisher and opined that Rose’s ongoing lung problems were not related to the explosion. Rather, he felt her problems were more consistent with a sporadic asthmatic-type bronchitis, commonly associated with seasonal allergies. He also noted various references in her medical records to “functional overlay,” which refers to medical problems without an organic cause but having most likely an emotional or mental cause.
Figgie then deposed Dr. Mazzeo, a neurologist who between 1992 and 1994 treated Rose four times for headaches arising from an auto accident. In addition to her headaches, Rose complained she was depressed and anxious, and Dr. Mazzeo prescribed anti-depressant medicine. But his examinations did not reveal any physical neurological abnormalities to explain her headaches. He diagnosed her headaches as arising from a psychiatric disorder known as somatoform, which he defined as a mental condition that causes the patient to experience physical symptoms out of proportion to any physical insult or ailment. He also noted that she craved the physician-patient interaction, and that she relished the sick role. He repeatedly recommended that she receive psychiatric treatment, which she steadfastly refused. Dr. Mazzeo personally observed no respiratory difficulties, and he did not learn that she had any respiratory complaints until the fourth visit. When asked if the somatization disorder would make Rose more likely to continue with pulmonary complaints beyond those a mentally-unimpaired person would experience, he testified this was likely, but that he would require further eváluation to apply it to her respiratory complaints.
Soon thereafter Figgie moved the court, pursuant to OCGA § 9-11-35, to compel Rose to submit to a psychiatric examination to determine whether her mental condition was causing her pulmonary complaints. Figgie submitted the affidavit of psychiatrist Dr. Davis, who deposed that based on his review of the medical records and depositions, Rose suffered from one or more psychiatric disorders related to the claims asserted in this suit. Figgie also pointed to Rose’s testimony in her interrogatory responses and deposition that she had experienced mental depression since the time of the explosion, and that she was seeking recovery for mental distress. Finding that the mental condition of Rose was in controversy and that good cause existed, the court ordered her to submit to a mental examination by Dr. Davis over two days.
Based on an extensive psychiatric evaluation and a full battery of psychological tests, as well as his trained medical observations of the lack of any pulmonary distress, Dr. Davis, assisted by psycholo *857 gist Dr. Powell, determined that Rose suffered from a psychiatric clinical disorder of malingering or somatoform and from a psychiatric narcissistic personality disorder with anti-social features and histrionic traits. All of these mental disorders are listed in the Diagnosis and Statistical Manual of Mental Disorders, Fourth Edition. Excerpts of the book were attached to Dr. Davis’ affidavit.
Dr. Davis deposed that because of these disorders (a) Rose was intentionally producing false or grossly exaggerated physical symptoms motivated by financial compensation of the lawsuit, (b) she often exaggerated or manufactured information to overcome feelings of inferiority and to inflate her own self importance, and (c) she frequently took advantage of others to achieve her own ends. He concluded that her physical complaints were psychiatric in nature and not related to the explosion.
Figgie subsequently deposed Rose’s neighbor, who testified that immediately following the explosion Rose told her that she intended to feign a respiratory illness.
Arguing that the psychiatric evidence went solely to her credibility, a matter reserved exclusively for the province of the jury, Rose moved in limine to exclude the testimony of Drs. Davis and Powell. Granting this motion, the court referred to the evidence as “an opinion that essentially says little more than she is a malingerer,” which “has nothing to do with this case.” Figgie appeals this order.
3. (a) “The credibility of a witness is a matter to be determined by the jury. . . .” OCGA § 24-9-80. Georgia does not allow witnesses to opine that a party or victim is lying or telling the truth, for under this statute credibility “is a matter solely within the province of the jury. An expert witness may not testify as to his opinion of the victim’s truthfulness.” (Citations and punctuation omitted.)
Campbell v. State,
Drs. Davis and Powell do not opine that Rose is lying or not credible. Rather, they diagnose her as suffering from recognized psychiatric disorders that have caused her to have or complain of physical symptoms out of proportion to any injuries she may have experienced. These disorders may explain the testimony of other physicians that her respiratory ailments are sporadic and lack an organic basis, and, if linked to the explosion, have continued over a much longer period of time than would normally be expected. This relates directly to the issue of causation. Did the emissions of the exploding fire extinguisher cause the injuries of which plaintiff complains?
Such evidence would also relate to damages. Having indicated *858 that she was suffering from depression as a result of the explosion, Rose made her mental condition relevant. The extent of that depression and of her physical ailments as exacerbated by her psychiatric disorders is relevant in determining the amount of damages. The evidence is admissible pursuant to OCGA § 24-9-67. The court erred in finding the evidence “had nothing to do with this case.”
(b) Rose nevertheless argues that the trial court should not have ordered the psychiatric exam in the first place. Not having appealed from that order or enumerated that order as error, Rose has “waived this issue on appeal.”
Wilson v. City of Atlanta,
(c) Rose next argues that Dr. Davis’ opinion that Rose is malingering is nothing more than an inadmissible opinion that she is lying. This argument fails for several reasons. First, Dr. Davis testified without contradiction that malingering is a recognized psychiatric clinical disorder. We have previously acknowledged evidence that malingering is a mental condition.
Knudsen v. Duffee-Freeman, Inc.,
Second, he diagnosed its presence in her and also diagnosed her with a psychiatric narcissistic personality disorder with anti-social features and histrionic traits. Moreover, he has a background in pulmonary diseases but observed no pulmonary distress in Rose.
OCGA § 24-9-67 provides that the “opinions of experts on any question of science, skill, trade, or like questions shall always be admissible.” Even if the testimony goes to the ultimate issue to be decided by the jury, expert opinion “is admissible where the conclusion of the expert is one which jurors would not ordinarily be able, to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. [Cits.]”
Smith v. State,
We have consistently allowed experts to testify as to malingering. “Whether appellant was feigning injury was a relevant query, and expert testimony relative thereto was properly admitted over a
*859
relevancy objection. [Cits.]”
Wildstein v. Gray,
Physician testimony as to whether the victim was malingering was also allowed in
Drake v. Shurbutt,
Experts may also “express an opinion as to whether medical or other objective evidence in the case is consistent with the victim’s story.” (Citations and punctuation omitted.)
Knight v. State,
The trial court abused its discretion in ruling that the expert testimony as to Rose’s malingering and other psychiatric disorders was irrelevant and inadmissible.
Judgment reversed in Case Nos. A97A1495 and A97A1496.
Notes
Figgie’s representative initially claimed that the extinguisher was possibly returned to Figgie and discarded. In a subsequent deposition he testified that upon further review it appeared that Figgie had never received the extinguisher. Rose’s daughter testified that she saw the maintenance man remove the extinguisher, which testimony Rose confirmed.
See
C. A. Assoc. v. Dow Chem. Co.,
918 F2d 1485, 1489 (10th Cir. 1990) (“Both federal and state courts routinely permit introduction of substantially similar acts or occurrences in product liability actions to demonstrate the existence of a defect”);
McGonigal v. Gearhart Indus.,
851 F2d 774, 778 (5th Cir. 1988) (evidence that another grenade had exploded prematurely relevant to show this grenade was negligently manufactured);
Nevels v. Ford Motor Co.,
439 F2d 251, 258 (5th Cir. 1971) (admitted evidence of other loose steering mechanisms in 1967 Mustangs manufactured at same plant to show manufacturing defect);
Rhodes v. Michelin Tire Corp.,
542 FSupp. 60, 62 (E.D. Ky. 1982) (“few things could be more relevant in a products action than the occurrence or the non-occurrence of other accidents or failures under similar circumstances”);
Gen. Motors Corp. v. Van Marter,
447 S2d 1291, 1293 (Ala. 1984) (evidence of wiring malfunction in similar car admissible);
Dura Corp. v. Harned,
Psychiatric evidence of malingering is also allowed in criminal cases to determine the defendant’s competency or sanity.
McMichen v. State,