FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, 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
March 10, 2020
In the Court of Appeals of Georgia
A19A2384. CLEVELAND v. SENTINEL INSURANCE
COMPANY, LTD et al.
COOMER, Judge.
This appeal arises from two lawsuits filed by Helen Cleveland as a result of
repair work done on her home to fix flood damage caused by a frozen water pipe.
Summary judgment was granted on some claims and the remaining claims proceeded
to a jury trial. Cleveland contends that the trial court erred by (1) granting summary
judgment to Barko Reponse Team, Inc., on her claims for personal injury; (2)
excluding the testimony of Cleveland’s real estate agent regarding the current market
value of her property; and (3) allowing Sentinel Insurance Company, Ltd. to call
Cleveland’s adult son as a rebuttal witness for purposes of impeachment. For the
following reasons, we affirm.
It is well established that on appeal of a grant of summary
judgment, the appellate court must determine whether the trial court
erred in concluding that no genuine issue of material fact remains and
that the party was entitled to judgment as a matter of law. This requires
a de novo review of the evidence. Summary judgment is appropriate
when the court, viewing all the facts and evidence and reasonable
inferences from those facts in a light most favorable to the non-movant,
concludes that the evidence does not create a triable issue as to each
essential element of the case.
Rubin v. Cello Corp., 235 Ga. App. 250, 250-251 (510 SE2d 541) (1998)
(citations and punctuation omitted). So viewed, the evidence relevant to this appeal
shows that Cleveland filed two lawsuits, which were later consolidated, against
Sentinel, Monique Hahn, and Barko, among others, asserting claims arising from
repair work done on her home to fix flood damage to her house that occurred after a
water pipe froze and burst in 2012. Cleveland claimed that the repair work was
deficient and led to mold infestation and personal injuries related to her exposure to
mold. Cleveland alleged a number of claims, including damage to property, personal
injury, breach of contract, and fraud. On February 22, 2017, the trial court granted
summary judgment to Barko on Cleveland’s personal injury claims. After a five-day
trial, the jury returned a verdict (1) in favor of Cleveland against Barko in the amount
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of $70,000 on Cleveland’s claim for negligent construction and in the amount of
$110,000 on Cleveland’s claims for attorney fees; (2) in favor of Barko on
Cleveland’s claims for breach of contract and punitive damages; and (3) in favor of
Sentinel and Hahn on Cleveland’s claims of fraud, breach of contract, and bad faith.
This appeal followed.
1. First, Cleveland contends that the trial court erred by granting summary
judgment to Barko on her personal injury claims. We disagree.
(a) Cleveland argues that the trial court improperly excluded the expert
testimony of Dr. Donald Dennis, which supported her personal injury claims against
Barko. “The issue of the admissibility or exclusion of expert testimony rests in the
broad discretion of the trial court, and consequently, the trial court’s ruling thereon
cannot be reversed absent an abuse of discretion. Further, we review a trial court’s
ruling on a motion in limine for abuse of discretion.” Berryhill v. Daly, 348 Ga. App.
221, 225 (5) (822 SE2d 30) (2018) (citation omitted). See also Butler v. Union
Carbide Corp., 310 Ga. App. 21, 25 (1) (712 SE2d 537) (2011) (reviewing trial
court’s exclusion of expert testimony for abuse of discretion before reviewing
whether summary judgment was proper under de novo standard of review).
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OCGA § 24-7-702 governs the admissibility of expert testimony and requires
that the trial court act as “gatekeeper to ensure the relevance and reliability of expert
testimony.” Scapa Dryer Fabrics, Inc. v. Knight, 299 Ga. 286, 289 (788 SE2d 421)
(2016) (citation and punctuation omitted) (addressing expert testimony under former
OCGA § 24-9-67.1). OCGA § 24-7-702 (b) provides:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training,
or education may testify thereto in the form of an opinion or otherwise,
if: (1) The testimony is based upon sufficient facts or data; (2) The
testimony is the product of reliable principles and methods; and (3) The
witness has applied the principles and methods reliably to the facts of
the case which have been or will be admitted into evidence before the
trier of fact.
To establish the admissibility of expert testimony under OCGA § 24-7-702, the trial
court, as gatekeeper, must consider: (a) the qualifications of the expert; (b) the
reliability of the testimony; and (c) the relevance of the testimony. See Scapa Dryer
Fabrics, Inc., 299 Ga. at 289. The burden of establishing the admissibility of the
expert’s opinions is on the party seeking to introduce the expert testimony. Id. at 293.
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Applying these principles to the instant case, we find no abuse of the trial
court’s discretion in excluding the expert testimony of Dr. Dennis. In a well-reasoned
order, the trial court fulfilled its role as gatekeeper. The trial court found that Dr.
Dennis was “qualified to offer medical opinions about Cleveland’s medical condition,
diagnosis, treatment, and prognosis.” The trial court then considered the issue of
proximate causation and whether Dr. Dennis could “reliably testify that the mold in
Cleveland’s house, rather than mold or allergens from some other source, caused
Cleveland’s toxic mold problems and injuries.” “[W]e have required expert medical
testimony, ‘based at least on reasonable probability,’ to establish a causal link
between exposure to a substance and a medical condition.” Allstate Ins. Co. v. Sutton,
290 Ga. App. 154, 160 (3) (b) (658 SE2d 909) (2008) (citation omitted). “[E]xpert
evidence is required where a ‘medical question’ involving truly specialized medical
knowledge (rather than the sort of medical knowledge that is within common
understanding and experience) is needed to establish a causal link between the
defendant’s conduct and the plaintiff”s injury.” Cowart v. Widener, 287 Ga. 622, 622
(697 SE2d 779) (2010) (emphasis omitted).
“Georgia case law requires . . . that an expert state an opinion regarding
proximate causation in terms stronger than that of medical possibility, i.e., reasonable
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medical probability or reasonable medical certainty.” Zwiren v. Thompson, 276 Ga.
498, 503 (578 SE2d 862) (2003). “A plaintiff must submit expert medical testimony,
based at least on reasonable probability, to establish a causal link between exposure
to a substance and a medical condition. This is true at the summary judgment stage[.]”
Ellis v. Hartford Run Apartments LLC, 335 Ga. App. 118, 122 (2) (c) (i) (779 SE2d
103) (2015) (citations and punctuation omitted). The trial court found “no indication
that [Dr.] Dennis ever opined to a reasonable medical probability that the mold in
Cleveland’s house caused her symptoms or made a meaningful contribution to her
injuries.” The trial court acknowledged that Dr. Dennis testified in his deposition that
“based on [Cleveland’s] first visit, [he] thought her house was making her sick.”
However, the trial court also found that “nowhere in his deposition does [Dr.] Dennis
state that the mold in Cleveland’s house, vis-à-vis other potential sources of mold,
made a meaningful contribution to her symptoms. Nor does [Dr.] Dennis profess that
his opinions as to cause are based on a reasonable medical probability.” The trial
court noted that other than deposition testimony, Cleveland did not tender any
affidavit or expert report by Dr. Dennis. The trial court concluded that Cleveland
failed to meet her burden of showing that the testimony of Dr. Dennis was admissible
under OCGA § 24-7-702 (b). Under the facts of this case, we cannot say that the trial
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court abused its discretion when it granted Barko’s motion to exclude his expert
testimony.
(b) “Causation is an essential element of a toxic tort case, and proof of
causation in such cases “generally requires reliable expert testimony.” Butler, 310 Ga.
App. at 30 (2) (citation omitted). Because the expert testimony of Dr. Dennis was
properly excluded, the trial court did not err in granting summary judgment to Barko.
2. Next, Cleveland contends that the trial court erred by excluding the
testimony of her real estate agent, Glennis Beacham, regarding the current market
value of her property. We disagree.
We review a trial court’s decision to admit or exclude evidence for abuse of
discretion. Dept. of Transp. v. Mendel, 237 Ga. App. 900, 902-903 (2) (517 SE2d
365) (1999).
In a deposition, Beacham testified that, in her opinion, Cleveland’s house might
need to be bulldozed:
Q: Now, you don’t have an opinion that the home needs to be bulldozed,
do you?
A: Actually, I think it might need to be.
Q: That’s your opinion?
A: Yes.
Q: What do you base that on?
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A: I don’t think the home is inhabitable. And I think – I cannot imagine
someone – if they knew all of this and thoroughly investigated this, I
cannot imagine somebody paying more than lot value for this home.
Barko filed a motion in limine requesting that the trial court preclude Beacham
from “testifying, either directly or indirectly, to the claim that [Cleveland’s] home is
so damaged it is uninhabitable and must be demolished.” Barko argued that because
Beacham is a lay witness, not an expert, the trial court should “preclude any
testimony by Ms. Beacham that the home requires demolition and has no value
beyond lot value.”
In an order dated October 27, 2017, the trial court ruled that, as a lay witness,
“Beacham may testify as to her efforts to sell Cleveland’s home and as to the market
value of the property. Beacham may also testify as to her personal experiences while
in the home.” However, the trial court ruled that because she is not an expert witness,
“Beacham may not testify that the home is uninhabitable or should be demolished.”
At trial, defense counsel made a motion in limine to prevent Beacham from
testifying about the value of Cleveland’s lot. The trial court ruled that Beacham could
not testify about the value of the lot. Cleveland’s counsel made a proffer of
Beacham’s testimony, asking her if she had “any basis on which to conclude the value
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of this property if the house itself, the main house were not on this lot, if that house
were not present and it was being sold as a lot?” Beacham testified that she was
familiar with three larger lots near Cleveland’s property that sold for $800,000,
$600,000, and $812,000. Cleveland’s counsel asked, “In your opinion, based on those
comparable sales of somewhat larger lots, how much would this lot be valued at?
What would be the fair market value of this lot without destruction?” Beacham
answered, “Well, less than the three that I just talked about. Without – there is a lot
that’s .63 acres on Mt. Paran that’s listed for 499. That’s the only other thing that I
could find.”
In her enumeration of error, Cleveland contends that the trial court “abused its
discretion in excluding the testimony of [Beacham] regarding the current market
value of Cleveland’s property[.]” However, in its October 29, 2017 order, the trial
court specifically ruled that Beacham would be permitted to testify “as to the market
value of the property.” Cleveland seems to be arguing that by ruling at trial that
Beacham could not testify about the value of the lot, the trial court was preventing her
from testifying about the value of the entire property. Cleveland’s proffer of
Beacham’s testimony did not include any testimony by Beacham regarding the
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current market value of the entire property. Accordingly, Cleveland’s enumeration
has no merit.
3. Finally, Cleveland contends that the trial court abused its discretion by
allowing Sentinel to call her adult son, Michael Cleveland, as a witness. Cleveland
argues that although her son was designated as a rebuttal witness, he was clearly
called as a witness to admit improper character evidence to inflame and prejudice the
jury. We again disagree.
Michael Cleveland was named as a rebuttal witness after Cleveland identified
Beacham and Carol Bitter as possible witnesses. Cleveland filed a motion in limine
requesting to exclude her son as a rebuttal witness. Barko opposed the motion,
contending that Michael Cleveland has personal knowledge of the state of
Cleveland’s house and furnishings after the house was flooded. The trial court denied
Cleveland’s motion. At trial, Michael Cleveland testified that he had last been in
Cleveland’s house in 2013 and he had seen no damage or mold at that time. He was
then asked, “Do you have any experience, firsthand knowledge of Ms. Cleveland’s
dealings with other contractors working in the home during the timeframe of 2012
forward?” Michael Cleveland answered, “Yes, I do.” He then testified: “She has told
me and my daughter, sometimes she’s hired these contractors because at the end she
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would state that she wasn’t satisfied with the work. And since she’s an attorney and
has unlimited legal resources, it would be cheaper for the contractors to write off the
work than to challenge her in court.”
Cleveland contends that her son’s testimony about her treatment of contractors
was character evidence that was not proper impeachment testimony. She argues that
the “trial court’s decision to allow such hateful testimony was a dramatic abuse of
discretion that alone requires reversal of the judgment and remand for a new trial.”
However, “[i]t is axiomatic in Georgia appellate law that an appellant, to secure a
reversal, must show not only error but harm.” Premium Distrib. Co. v. Nat. Distrib.
Co., 157 Ga. App. 666, 670 (2) (278 SE2d 468) (1981). Cleveland concedes that “she
had admitted many times under oath that there were times when she did not pay
contractors for faulty work.” Furthermore, the jury returned a verdict against Barko
in the amount of $70,000 on her claim for negligent construction and in the amount
of $110,000 on her claim for attorney fees. Pretermitting whether her son’s testimony
was properly admitted, Cleveland has shown no harm from the admission of his
testimony.
Judgment affirmed. Doyle, P. J., and Markle, J., concur.
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