On October 31, 2016, the Georgia Supreme Court held that a Plaintiff using opinion testimony from its opponent’s 30(b)(6) witness must still conform to Georgia’s evidentiary statute governing the admissibility of expert testimony, O.C.G.A. § 24-7-702 (modeled after Fed. R. Evid. 702).  Yugueros v. Robles, Case No. S16G0619 (S. Ct. Oct. 31, 2016).  In Yugueros v. Robles, Rudy Robles sued Dr. Patricia Yugueros and her medical practice, Artisan Plastic Surgery, LLC,  for medical malpractice after Mr. Robles’ wife died after receiving plastic surgery.  Yugueros, at *2.  Robles served Artisan with a notice to depose a corporate representative, pursuant to O.C.G.A. § 9-11-30(b)(6), and Artisan designated its founder and co-owner, Dr. Diane Alexander.  Id. at *6.  Dr. Alexander admitted that a CT scan should have been ordered to determine if there were complications from the surgery, but no scan had been ordered.  Id. at *7.  The defendants moved to exclude the testimony of Dr. Alexander because it was inadmissible under Georgia’s expert witness statute due to the fact that Dr. Alexander had not been provided all the data necessary to form an opinion, among other reasons for excluding an expert.  Id. *9.  Plaintiff argued that such testimony was allowed as a party’s admission against interest under O.C.G.A. § 9-11-32(a)(2).  Exercising its discretion to act as the gate keeper of expert testimony, the trial court granted defendants’ motion in limine.  However, the Court of Appeals reversed based upon the argument proffered by Plaintiff.  Id. at *9.

The Supreme Court of Georgia granted certiorari to determine whether the Court of Appeals was “correct in holding that deposition testimony of an organizational representative taken under O.C.G.A. § 9-11-30(b)(6) may be admitted into evidence at trial under O.C.G.A. § 9-11-32(a)(2), without regard to the rules of evidence governing admissibility of expert testimony, see O.C.G.A. § 24-7-702.”  Yugueros, at *1.  Per the Court, while a party may generally use the testimony of its opponent’s corporate representative “for any reason” under Rule 32 of its Civil Practice Act, such provision “must be read in light of O.C.G.A. § 9-11-32(a)’s overriding requirements that” such testimony is “admissible under the rules of evidence applied as though the witness were then present and testifying.”  Yugueros, at *12-13 (citing O.C.G.A. § 9-11-32).  When such 30(b)(6) testimony is related to the violation of a medical standard of care, an area requiring expert opinion, the admissibility of such testimony falls under Georgia’s expert witness rule, O.C.G.A. § 24-7-702.  Further, absent an abuse of discretion, an appellate court must uphold the trial court’s ruling on admissibility.  Id. at *12.  “Under O.C.G.A. § 24-7-702, it is the role of the trial court to act as a gatekeeper of expert testimony.”  Id. at *13 (citing HNTB Georgia, Inc. v. Hamilton-King, 287 Ga. 641, 645 (2010)).  The trial court does not lose its role as a gatekeeper of expert testimony merely because the testimony was secured via a 30(b)(6) deposition.  Id.

If you have further questions about the foregoing case, how it may relate to issues facing your company, or Georgia’s relatively new evidentiary code please contact Clinton Fletcher or any other attorney at Nall & Miller, LLP.

Clinton F. Fletcher, Esq.
cfletcher@nallmiller.com