Ezor v. Thompson

Pope, Presiding Judge.

Elisa Ezor appeals the trial court’s order granting summary judgment to the defendants, Keith Thompson, M.D., Emory Clinic, Inc., and Emory Vision Correction Center, Inc., L.P., in the underlying medical malpractice action.1 Ezor contends that the trial court erred by applying the self-contradictory testimony rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986) to the testimony of her expert. We agree and reverse.

Ezor contends that Dr. Thompson committed medical malpractice because her visual acuity was diminished after Dr. Thompson *276performed five operations on her eyes over three months. Ezor attached Dr. James C. Hays’s affidavit to her complaint in compliance with OCGA § 9-11-9.1. In his affidavit, Dr. Hays stated that performing multiple automated lamellar keratoplasty (“ALK”) and radial keratotomy operations in such quick succession violated the applicable standard of care.

In his deposition Dr. Hays stated that the timing of the operations was against “conventional wisdom” and the “party line.” Dr. Hays added that there was a possibility that Dr. Thompson was “way out ahead” of his peers. He further deposed that the second procedure, an ALK, was performed too soon after the first but that he was “not sure” that Ezor was injured as a result. In a second affidavit filed after his deposition and in response to defendants’ motion for summary judgment, Dr. Hays stated that following his deposition he had examined and treated Ezor. He then reaffirmed his opinion that Dr. Thompson had violated the standard of care by not waiting three months before performing a subsequent operation on Ezor’s eyes and that such violation caused permanent injury to Ezor’s eyes.

The trial court determined that Dr. Hays’s deposition contradicted his original affidavit and that his second affidavit submitted after his deposition did not adequately explain the contradiction. Reasoning that Dr. Hays’s contradictory testimony was the only evidence in support of Ezor’s malpractice claim, the trial court applied Prophecy and granted summary judgment to the defendants.

1. This Court has been inconsistent when deciding whether to apply the self-contradictory testimony rule to expert witnesses. At least six of our cases have either applied or refused to apply this rule to experts, thereby creating a conflict in the law.2 In 1995, this Court twice held that the self-contradictory testimony rule does not apply to an expert’s affidavit. Ewers v. Cooper, 217 Ga. App. 434 (457 SE2d 705) (1995); Flanagan v. Riverside Military Academy, 218 Ga. App. 123 (460 SE2d 824) (1995). Ewers explained that an expert’s affidavit is not the testimony of a party, and therefore a contradiction between that expert’s testimony and the party’s legal position was not necessarily fatal to the party’s claims. 217 Ga. App. at 435. Flanagan held that an expert was not a party and therefore the rule did not apply. 218 Ga. App. at 126. In 1998, we again held that the self-contradictory testimony rule did not apply to the testimony of a non-party wit*277ness, which in that case was an expert. Sawyer v. DeKalb Med. Center, 234 Ga. App. 56-57 (2) (506 SE2d 197) (1998).

Three months after Flanagan, without analysis or explanation, and without citation to either Ewers or Flanagan, this Court in Ford v. Dove, 218 Ga. App. 828 (1) (463 SE2d 351) (1995), applied the rule to an expert witness for the first time. Two other cases simply followed Ford. Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608, 609 (484 SE2d 257) (1997); Tuten v. Costrini, 238 Ga. App. 350, 353-354 (2) (a) (518 SE2d 751) (1997).

Thus, this Court must now resolve the question of whether the self-contradictory testimony rule should be extended to expert witnesses.

Our Supreme Court has never addressed this precise issue. Although it denied certiorari in three cases applying the Prophecy rule to expert witnesses, “ ‘[t]he denial of a writ of certiorari shall not be taken as an adjudication that the decision or judgment of the Court of Appeals is correct.’ ” (Citation omitted.) Adair v. Traco Division, 192 Ga. 59, 65-66 (14 SE2d 466) (1941). See also Ga. Const. of 1983, Art. VI, Sec. VI, Par. V.

But our Supreme Court has consistently enunciated different rules for handling the self-contradictory testimony of a party witness and a non-party witness. In 1895, when the Court established the self-contradictory testimony rule, it recognized that while a party has no power to control his witnesses’ testimony:

Where a party calls witnesses who conflict with each other in their sworn statements, he is not to be held responsible for the contradictions among them, for it is not within his power to prevent their occurrence; and a reviewing court will generally give to a party the benefit of the most favorable version of such testimony as a whole which the jury would be authorized to accept.

Western &c. R. Co. v. Evans, 96 Ga. 481, 486 (23 SE 494) (1895). The Court went on to explain, however, that while a party can control his or her own testimony, “a party testifying in his own favor has no right to be intentionally or deliberately self-contradictory; and, if he is so, the courts are fully justified in taking against him that version of his testimony which is most unfavorable to him.” Id.

In 1975, the Supreme Court made plain that the self-contradictory testimony rule applies to parties and not non-party witnesses. Miller v. Douglas, 235 Ga. 222, 223 (219 SE2d 144) (1975).

[The] holding [that] “the testimony of a party who offers himself as a witness in his own behalf is to be construed *278most strongly against him,” passing upon a motion for summary judgment, does not apply to contradictory statements by witnesses who are not parties to the litigation.

Id. at 223. And the court has been clear that it was applying the rule to a “party” or “party-witness.” Prophecy, 256 Ga. at 27-30. Shiver v. Norfolk-Southern R. Co., 269 Ga. 168, 169 (496 SE2d 903) (1998); Korey v. BellSouth Telecommunications, 269 Ga. 108 (498 SE2d 519) (1998); Hudgens v. Broomberg, 262 Ga. 271 (416 SE2d 287) (1992).

This Court also has held that the self-contradictory testimony rule does not apply to non-party lay witnesses. In 1934, we held that the rule “applies only to the testimony of a party to the case, and not to the testimony of a witness who is not such a party.” (Emphasis omitted.) Henry v. Nashville Chattanooga &c. R. Co., 50 Ga. App. 49, 50 (1) (176 SE 906) (1934). See also Painter v. Continental Ins. Co., 233 Ga. App. 436, 437-438 (1) (504 SE2d 285) (1998); Allen v. King Plow Co., 227 Ga. App. 795, 799 (4) (490 SE2d 457) (1997); English v. Crenshaw Supply Co., 193 Ga. App. 354, 359 (2) (387 SE2d 628) (1989).

In light of this long-standing precedent, we find no reason to apply a different rule to expert non-party witnesses. A party has no greater power to prevent contradictions between experts or within an expert’s testimony than with regard to fact witnesses. Although an expert may be paid, those circumstances may be explored on the stand, and any question of bias is for the jury. As we have previously held, the fact that an expert’s testimony may be contradictory goes only to the weight or credibility of the testimony and does not render it inadmissible. Furse v. O’Kon, 153 Ga. App. 703 (2) (266 SE2d 343) (1980); see also OCGA §§ 24-9-80; 24-9-85.3

Moreover, our opinion in Tuten reveals some of the problems in extending the rule in this manner. Although Tuten states that the party did not offer a reasonable explanation for the expert’s contradictions, it does not state how this should be done. Should the party provide the explanation, or would the expert’s explanation be required? To complicate the matter further, Tuten applied the contradictory testimony rule to contradictions between the testimony of two expert witnesses. In such cases, who decides which expert was correct and who determines which witness must offer the explanation for the inconsistency? Nothing in Prophecy justifies extending the rule in that manner, and doing so undermines one of the basic functions of the jury: determining the credibility of witnesses. Turner v. *279State, 206 Ga. App. 683, 684 (426 SE2d 168) (1992).

The dissent seeks to narrowly draw the issue here and espouses a highly technical and unwarranted distinction between contradictory expert testimony involving an OCGA § 9-11-9.1 affidavit and other contradictory expert testimony. But there is no basis for such a distinction, and we should not enunciate two rules to be applied to contradictory expert testimony depending on the setting in which it occurs.

For the foregoing reasons, we hold that the self-contradictory testimony rule does not apply to the testimony of expert non-party witnesses. It follows that Ford, Abdul-Majeed, and Tuten must be overruled to the extent that they apply the self-contradictory testimony rule to an expert witness.4

2. Dr. Hays’s affidavits together with his deposition raise issues of fact regarding Ezor’s malpractice claim against the defendants. In his second affidavit, Hays fully reasserted his opinion that Thompson’s performance was below the standard of care and that Ezor was injured as a result. We therefore reverse the decision granting the defendants’ motions for summary judgment on the malpractice claim..

Judgment reversed.

Johnson, C. J., McMurray, P. J., Smith, Ruf-fin, Eldridge, Barnes, Miller, Ellington and Phipps, JJ., concur. Andrews, P. J, and Blackburn, P. J., dissent.

The trial Court also granted defendants’ motion for summary judgment on Ezor’s battery claim; however, Ezor has not appealed that ruling.

Compare Sawyer v. DeKalb Med. Center, 234 Ga. App. 54, 56-57 (2) (506 SE2d 197) (1998); Flanagan v. Riverside Military Academy, 218 Ga. App. 123, 125-126 (460 SE2d 824) (1995); Ewers v. Cooper, 217 Ga. App. 434, 435 (457 SE2d 705) (1995) (refusing to apply the self-contradictory testimony rule to expert testimony in different settings) with Ford v. Dove, 218 Ga. App. 828 (1) (463 SE2d 351) (1995); Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608, 609 (484 SE2d 257) (1997); Tuten v. Costrini, 238 Ga. App. 350, 353-354 (2) (a) (518 SE2d 751) (1999) (applying the rule to expert testimony).

Also, Georgia law provides another remedy for possible perjured testimony by a witness. OCGA § 24-9-85 (b) states that under certain circumstances, testimony from a witness who has wilfully and knowingly sworn falsely shall be disregarded entirely.

Our holding does not eliminate the possibility of summary judgment in a professional negligence case. A valid OCGA § 9-11-9.1 affidavit standing alone is not necessarily sufficient to withstand a motion for summary judgment. OCGA § 9-11-9.1 merely imposes a pleading requirement; it does not require that the affidavit be sufficient to satisfy the evi-dentiary standards of OCGA § 9-11-56. Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992); 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 287-288 (1) (378 SE2d 708) (1989). For example, an expert’s opinion in his or her affidavit may be based on an assumed fact. If that fact is incorrect, summary judgment may result.

Also, it should be remembered that the purpose of OCGA § 9-11-9.1 “is to reduce the number of frivolous malpractice suits being filed....” 0-1 Doctors Mem. Holding Co., 190 Ga. App. at 288 (1). Thus many cases where summary judgment would have been appropriate presumably have already been eliminated.