TURRELL Et Al. v. McNEEL Et Al.

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

July 16, 2015

In the Court of Appeals of Georgia
A15A0563. TURRELL et al. v. McNEEL et al.

MCMILLIAN, Judge.

A jury returned a defense verdict in a medical malpractice case brought by June

and Robert Turrell against Michael J. McNeel, M.D., and his practice, Marietta

Plastic Surgery, P.C. Following the denial of their motion for new trial, the Turrells

appeal, arguing that the trial court committed errors mid-trial when the Turrells

moved for sanctions, and thereafter erred in denying their motions for new trial, to

strike liability defenses, and to disqualify defense counsel. Because the trial court was

correct in concluding that the Turrells waived their right to seek sanctions against the

defendants, we find no error and affirm.
 Following a jury trial, we view the evidence in the light most favorable to the

verdict.1 So viewed, the evidence showed that Mrs. Turrell underwent a gastric

bypass procedure in 2004 and lost a great deal of weight, which left her with loose

skin. In January 2007, she consulted Dr. McNeel and decided to undergo a

“circumferential body lift” to remove excess skin and reshape her midsection

immediately following a scheduled hysterectomy. The surgeries took place on March

2, 2007. The hysterectomy took a little more than two hours, and the body lift took

another seven hours and 45 minutes, during which Dr. McNeel removed eight pounds

of flesh from Mrs. Turrell’s body. Mrs. Turrell underwent a transfusion the following

day and was discharged from the hospital on March 6, 2007.

An area of necrotic tissue later developed on Mrs. Turrell’s left buttock, which

eventually required several additional procedures and surgeries to correct over the

course of the next few months. Thereafter, she sued Dr. McNeel and his practice for

medical malpractice, contending that he failed to use proper surgical techniques and

1
Clements v. Weaver, 301 Ga. App. 430, 430 (687 SE2d 602) (2009).

2
failed to identify and properly treat her infected wounds. Mr. Turrell sued for loss of

consortium.2

The case was tried to a jury beginning on September 30, 2013. After the

Turrells completed the presentation of their evidence, the trial recessed until the next

morning. When the parties and counsel returned to court the next morning on the

fourth day of trial, the Turrells represented to the trial court that defense counsel had

contacted Mrs. Turrell’s treating wound care nurse in violation of the court’s

Qualified Protective Order (“QPO”) that directed defense counsel to give notice to

plaintiffs’ counsel of their intent to speak with any of Mrs. Turrell’s healthcare

providers. The Turrells also complained that defense counsel had given the wound

care nurse a number of documents “to review to help the defense and prepare to

testify in this case,” in violation of the federal Health Insurance Portability and

Accountability Act (HIPAA).3 Plaintiffs’ counsel offered no explanation as to why

2
The Turrells’ original complaint was filed on February 27, 2009 and
voluntarily dismissed without prejudice on February 23, 2012. The renewal complaint
was filed on February 29, 2012.
3
Protected health information is defined within HIPAA as “individually
identifiable health information … that is: (i) [t]ransmitted by electronic media; (ii)
[m]aintained in electronic media; or (iii) [t]ransmitted or maintained in any other form
or medium.” 45 CFR § 160.103.

3
they waited until the fourth day of trial to bring these allegations to the court’s

attention when it appeared that they may have discovered this issue prior to trial.4

Defense counsel, who had received no prior notice of plaintiffs’ counsel’s

concerns, explained that while she had previously met with the wound care nurse two

years before, along with plaintiffs’ counsel, in accordance with the QPO, since that

time the defense had

had no contact with her, except we called and advised her that we would
be interested in calling her at trial. And she said to us that she hadn’t
looked at this information in a while, and will we send her the medical
records so that she could review them in preparation, and we provided
her the medical records. We’ve had no contact with her other than
scheduling-type information: When would you be available to come to
court? When would you like for me to be here? No discussion about the
substance of her testimony at all.5

4
Plaintiffs’ counsel stated to the court that co-counsel personally met with the
nurse a week before trial to discuss her testimony. And co-counsel’s affidavit
indicates that he spoke with the nurse on September 16, 2013 and again on September
26, 2013, four days prior to the start of trial, regarding her review of the medical
records and potential testimony at trial.
5
Defense counsel maintained throughout that providing Mrs. Turrell’s hospital
medical records did not violate the QPO.

4
 Plaintiffs’ counsel declared that the communications violated at least the spirit

of the QPO because the defense did not inform the Turrells that they were providing

documents to a treating healthcare provider to review in preparation for testifying,

and they did not know what documents had been provided. The trial court agreed that

contacting the wound care nurse without notifying plaintiffs’ counsel was at least a

technical violation of the QPO and asked what sanctions the plaintiffs sought.

Plaintiffs’ counsel requested that the defense be prevented from calling the wound

care nurse as a witness.

As the defense did not intend to call the nurse until later that day or the next

day, the trial court took the matter under advisement.6 At that point, the jury returned

to the courtroom, and Dr. McNeel began his testimony. During a break in the

testimony, the trial court told the plaintiffs’ attorneys,

6
Plaintiffs’ counsel then complained that another defense lawyer, Henry Green,
had actually delivered the records to the nurse. When questioned by the trial court,
defense counsel explained that she involved Green in the records transmission
because when the nurse was originally contacted, her employer had procured Green’s
representation for the nurse. The previous meeting between defense counsel and the
nurse took place at Green’s office, with plaintiffs’ counsel attending. Because of this
prior representation, defense counsel stated, when she decided she might call the
nurse as a witness at trial, she contacted Green first and asked him if she should
continue to contact the nurse through him. Green asked defense counsel to send him
the materials the nurse wanted to review, and he would forward them to her.

5
 In order to make any ruling on your motion to exclude the witness for
violation of the [Q]ualified [P]rotective [O]rder, the Court would have
to have further information and [that] would, I guess, require discovery
by the plaintiffs. So, at this point, you can pursue a proffer of [the
wound care nurse], of Mr. Green – e-mails, correspondence, whatever
you want to obtain, in order to determine whether or not there was a
violation of the Qualified Protective Order through the cooperation or
intervention of another lawyer. Y’all can think about that and talk to me
when I come back on.

Dr. McNeel’s direct examination resumed, defense counsel finished her direct

examination, and Dr. McNeel’s cross-examination began. The court then recessed for

lunch, and when counsel, the parties, and the trial court returned, plaintiffs’ counsel

stated that defense counsel had informed him she would not be calling the wound care

nurse to testify. Nonetheless, the plaintiffs announced their intent to seek an even

more extreme sanction and moved the trial court to strike the defendants’ answer

based on their allegations that (1) defendants violated the terms of the QPO, as

previously discussed; (2) Mr. Green influenced the wound care nurse, who told

plaintiffs’ counsel that she was reticent to testify and “felt like she was in between a

rock and a hard spot”; and (3) defense counsel made material misrepresentations to

6
the court regarding the delivery of the records to the nurse.7 Plaintiffs’ counsel further

stated that the Turrells intended to move for a directed verdict on liability after the

evidence concluded and asked the court to withhold ruling on the sanctions motion

pending the jury verdict.

Defense counsel responded that she had no notice that the plaintiffs were

contemplating a motion to strike the answer, despite having conferred with them

several times about whether she would call the wound care nurse or not. The court

then found that defense counsel was entitled to notice and an opportunity for a full

hearing on the sanctions issue. However, the court determined that scheduling a

sanctions hearing mid-trial was impractical because there was a chance that the jury

would find out about the sanctions hearing, which the trial court believed might

“destroy our case.” Although plaintiffs’ counsel continued to argue that the court had

the authority to address misfeasance in its presence rather than being required to

“blow the trial up and set a hearing 30 days out,” the trial court observed that the

sanctions sought were severe and that the Turrells had to either drop the matter or

7
As proof of harm, plaintiffs alleged that Mrs. Turrell’s HIPAA rights had been
violated and a witness had been “neutralized that might otherwise have testified in
this case.”

7
pursue it, and that if they wanted to pursue it, then the court could not go forward

with the trial.

Plaintiffs initially rejected both options and instead moved for what was in

essence a continuance until the next morning to further “refine” their motion for an

“appropriate sanction.” The trial court denied a continuance but allowed counsel to

again confer with their clients to reach a permanent decision, rejecting plaintiffs’

equivocal request to reserve ruling on their motion to strike defendants’ answer until

after the jury reached its verdict. After so conferring, plaintiffs’ counsel agreed to

“permanently withdraw” the motion and proceed with the trial.

The defense continued to present its case, and the plaintiffs offered some

evidence in rebuttal. After the jury returned a defense verdict and the trial court

entered judgment, the Turrells filed a motion for new trial, a motion for sanctions, and

a motion to disqualify defense counsel. The trial court denied the motions, concluding

that the Turrells “waived the right to pursue a remedy for defense counsel’s alleged

misconduct” for violating the QPO and improperly influencing a witness. The court

noted that it had offered the Turrells the “full opportunity” to address the allegations

of misconduct and would have declared a mistrial, set the matter for a hearing,

allowed discovery, and considered sanctions if the evidence warranted them, and had

8
expressly put the Turrells on notice that they would waive the right to pursue any

remedy for the alleged misconduct if they chose to proceed with trial.8 And because

of its waiver finding, the trial court declined to address the Turrells’ remaining

arguments related to the sanctions motion.

On appeal, the Turrells contend that the trial court erred in failing to grant them

a reasonable amount of time to respond to the defendants’ misconduct, in forcing

them to choose between a mistrial or waiving the motion for sanctions, in ruling on

the issue after they withdrew their motion, and in denying their motions for new trial,

for sanctions, and to disqualify defense counsel.

1. We will first address the Turrells’ contention that the trial court erred in

failing to grant a continuance. “A motion for continuance of a trial is properly

addressed to the sound legal discretion of a trial judge, who is in control of the

management of the case in court. The exercise of that discretion will not be disturbed

by the appellate courts unless the discretion is manifestly abused.” (Citation and

footnote omitted.) Davis v. Osinuga, 330 Ga. App. 278, 279 (767 SE2d 37) (2014).

8
In response to the Turrells’ argument that they learned of new evidence
regarding the extent and nature of defense counsel’s conduct and communication with
the wound care nurse, the trial court found that the Turrells “had sufficient
information during (and perhaps even prior to) trial in order to seek the investigation
of, and a remedy for, defense counsel’s alleged misconduct.”

9
Based on the facts and circumstances of this case, where plaintiffs’ counsel

acknowledged they first became concerned about allegedly improper communications

in the week prior to trial, we find that the trial court did not manifestly abuse its

discretion in denying the plaintiffs’ request for a continuance to further consider their

motion for sanctions.

2. The Turrells also argue that the trial court erred in forcing them to choose

between a mistrial or waiver of their sanctions motion. Generally, “[a] trial court is

granted broad authority both to control the course of a trial and to manage discovery

disputes, including the imposition of discovery sanctions. We will not interfere with

the trial court’s exercise of that discretion absent a showing of clear abuse.”

(Citations omitted). LN West Paces Ferry Assocs., LLC v. McDonald, 306 Ga. App.

641, 646 (2) (a) (703 SE2d 85) (2010). However, pretermitting whether the trial court

abused its discretion in requiring the plaintiffs to choose to go forward with the

sanctions motion and have the case mistried or permanently forego moving for

sanctions, we find that plaintiffs’ counsel waived any further objection at the time the

choice was made.

Rather than stating any continuing objection on the record to what the plaintiffs

now call a “Hobson’s choice,” plaintiffs’ counsel, after being given some time to

10
confer with their clients off the record, responded to the trial court’s direction by

conceding:

Your Honor, based on the defendants’ representations that they are no
longer going to call [the wound care nurse] to testify, we would
permanently withdraw our motion for sanctions on this issue that we’ve
been talking about, and we’re ready to proceed.

It is clear that plaintiffs elected to proceed to a jury verdict rather than face a mistrial

and a separate hearing on the alleged misconduct. However, after the jury rendered

a defense verdict, plaintiffs nonetheless attempted to renew the very motion they

agreed to permanently withdraw. It is axiomatic that “[a] party cannot complain of

error created by his own legal strategy, trial procedure or conduct.” (Citations

omitted.) LN West Paces Ferry Assocs., LLC, 306 Ga. App. at 648-649 (3) (a). And

by failing to object to the choice put to them at the time it was made, plaintiffs have

waived this argument. Id. at 649 (3) (c).

3. In light of this waiver, plaintiffs’ remaining enumerations of error are moot.

Judgment affirmed. Ray, J., concurs. Barnes, P. J., concurs specially.

11
 A15A0563. TURRELL et al. v. McNEEL et al.

BARNES, Presiding Judge, concurring specially.

While I agree with the majority that the Turrells waived their right to seek

sanctions against the defendants in this medical malpractice case, I would find that

they did so only because they did not renew their objection when they were presented

with the option of doing so or accepting a mistrial. Because I do not agree with all

that is said, I concur specially.1

First, the plaintiffs in this case did not seek a continuance of the trial at any

time. What they sought, reasonably, was for the trial court to defer ruling on their

motion for sanctions until the following morning. This request was made after lunch

1
Because I do not agree with all that is said, this opinion is physical precedent
only. Court of Appeals Rule 33 (a).
on the fourth day of a five-day trial, after the plaintiffs had presented their evidence

and rested. The defendants objected to the request to defer ruling because they did not

want to be put to the expense of presenting a few hours of evidence if the trial court

was going to rule against them, even though the plaintiff had just gone to the

considerable expense of presenting several days’ worth of evidence.

Further, when the plaintiffs asked the trial court to defer ruling until the next

morning, they did not know the extent of any efforts by the defendants to influence

the treating wound care nurse. After further colloquy, the plaintiffs withdrew their

motion for sanctions, but the defendants protested the withdrawal and wanted the

matter resolved immediately. At that point the trial court gave plaintiffs’ counsel ten

minutes to confer with his client and then “either proceed on the motion or you

withdraw it permanently.” The trial court had made it abundantly clear early in the

trial that once it ruled, she wanted to hear no further response from the attorneys, and

upon his return, counsel chose the lesser of the two evils and again withdrew the

motion for sanctions.

The trial court essentially required the plaintiffs to guess whether the

defendants had done more than simply pass the plaintiff’s medical records through

a defense attorney that the hospital had previously hired to represent the nurse, rather

2
like making them choose to go all in or fold during a game of five-card stud when

they had only seen two of their cards.

And the context of the sanctions motion as set out in the majority is incomplete.

First, trial counsel had an agreement that they would disclose to opposing counsel

who might be coming the next day, an agreement memorialized in the pretrial order.

The defendants failed to comply with that agreement. The defense had listed their

expert nurse and the treating wound care nurse as may-call witnesses. In opening,

plaintiffs referred to anticipated testimony of the expert nurse, who in deposition

disputed Dr. McNeel’s opinion that pictures of Mrs. Turrell’s wounds showed no

signs of infection, and of the wound care nurse, who also saw signs of infection

where Dr. McNeel saw none. During the plaintiffs’ cross-examination of Dr. McNeel

on day three of the trial, however, defense counsel objected to a question about the

opinion of his hired expert nurse on the ground that the expert was not going to

testify. Plaintiffs’ counsel responded that he did not know the defense was not going

to call their expert although he had asked who they would call. The court said to

defense counsel, “If you weren’t going to call [your expert], you should put them on

notice you weren’t going to call her,” and defense counsel replied, “Well, I just have.”

The trial court pointed out that because of the “inappropriate” timing of the notice,

3
the plaintiffs were unable to call the expert themselves, but defense counsel

responded, “Well, I’m not required to put [plaintiffs’ counsel] on notice, at any

time[;] if I choose not to call a witness that’s on the witness list, I don’t have to.”

At the end of the day, defense counsel notified the plaintiffs that they might

call the wound care nurse the next day. Before trial began the next morning,

plaintiffs’ counsel told the court that he believed that the defense had contacted the

wound care nurse ex parte in violation of the QPO and had given her medical records

in violation of HIPAA. After discussion, the trial court took the matter under

advisement, but when plaintiffs’ counsel stated his understanding that another

medical malpractice lawyer, Henry Green, had actually delivered the records to the

nurse, the trial court questioned defense counsel further. Counsel explained that she

involved Green in the transmission process because the hospital had previously

procured him to represent the nurse.

The trial court responded that something was “a little unusual,” and noted that

“Mr. Green has been known to communicate with parties and witnesses, and others

4
related to cases, inappropriately, according to some judges. So that really puts a little

stick in the wheel there.”2

The Turrells did not waive their right to bring a motion for sanctions by

declining the trial court’s offer of an immediate mistrial. They waived it by failing to

make a contemporaneous objection when they announced their choice. A very long

line of Georgia appellant cases has define waiver as “a voluntary relinquishment of

some known right, benefit or advantage, which, except for such waiver, the party

otherwise might have enjoyed.” (Citations and punctuation omitted; emphasis

supplied.) Floyd v. Floyd, 291 Ga. 605, 606, n. 3 (732 SE2d 258) (2012). Further,

waiver is a unilateral action, Mail & Media v. Rotenberry, 213 Ga. App. 826, 832 (2)

(446 SE2d 517) (1994), not an action taken in response to an order to choose on of

two possible courses of action. In this case, requiring the plaintiffs to choose between

an immediate mistrial or the permanent loss of their ability to move for sanctions does

not result in a “voluntary relinquishment” of their right to seek sanctions when they

opt to continue the trial. As the Turrells point out, the grant of a mistrial on the fourth

2
See Wellstar Health Systems v. Kemp, 324 Ga. App. 629, 637 (1) (b) (751
SE2d 445) (2013) (affirming disqualification of Green and his firm for pressuring a
physician “directly or indirectly when they discovered that he intended to testify as
an expert for [the plaintiff],” which resulted in the physician declining to testify).

5
day of trial, after they had completed the presentation of their evidence, would have

disadvantaged only them, and at that point, they did not know exactly what the

defendants had done or why the wound care nurse had become reluctant to testify.

Although the trial court found that the Turrells had sufficient information during trial

to investigate any alleged misconduct, the court declined to give them until the

following morning to look into the issue, but required them to choose after ten

minutes of consultation. Agreeing to a mistrial at that point would have been a

tremendous gamble in the face of incomplete information.

While the defendants argue that mistrial or waiver were the only proper options

the trial court could have offered, the trial court had a third option, which was to

make no ruling at all. The Turrells had withdrawn their motion for sanctions, and

therefore no motion was pending that required a ruling, much less a preemptive ruling

to forestall any future motion for sanctions regardless of any information the Turrells

subsequently uncovered about the defendants’ actions. “There is neither reason nor

precedent for the proposition that when in a legal proceeding a motion has been

submitted to the court and subsequently withdrawn as formally as it was made, the

question raised by the motion can be afterwards considered, unless the motion shall

6
have been subsequently renewed.” Howard v. State, 115 Ga. 244, 250-251 (41 SE

654) (1902).

To quote our Supreme Court in a discovery violation case, a trial “is not

supposed to be a game in which the parties maneuver to hide the truth about relevant

facts, and when a party does intentionally mislead its adversary, it bears the risk that

the truth will later be revealed[.]” Ford Motor Co. v. Conley, 294 Ga. 530, 559 (757

SE2d 20 (2014). In this case, however, we will never know why the wound care nurse

became reluctant to testify.

For these reasons, I do not agree with the majority’s analysis of this appeal and

its conclusion that the Turrells waived the issue by making the choice forced upon

them. But because the Turrells did not renew their objection or make a continuing

objection, I agree that the issue was waived on appeal.

7