Dobbs v. Cobb E.N.T. Associates, P.C.

Banke, Judge,

concurring specially.

1. I must concur in this case only because I am compelled to follow Howard v. Walker, 242 Ga. 406 (249 SE2d 45) (1978), until such time as it is overruled.

2. My view of this evidentiary concept is related in my special concurrence in Self v. Executive Committee of Ga. Baptist Convention, 151 Ga. App. 298 (259 SE2d 695) (1979), and as set forth in the scholarly dissenting opinion of Justice Jordan, joined by Justice Undercofler in Howard, supra. Further, it is worth noting that Chief Justice Nichols in his special concurrence also did not embrace the new-found rule on opinion evidence. It is most disturbing to the bench and bar to have mere theoretical law uproot an area of law that has been well settled and has served well for more than 185 years — especially when there is no need to do so. This is a classic example of a violation of the oft repeated old saw: If it’s not broken, don’t fix it.

3. When the wholesale inequities of the new-found rule are brought to mind, it is interesting to note that it has not yet faced a direct constitutional challenge in the Supreme Court of Georgia or the federal courts.