Mark v. Agerter

Evidence of the neurosurgeon's subsequent remedial measure was not admissible for impeachment purposes in the medical malpractice lawsuit against him, because there was no conflict between the challenged testimony and the doctor's decision to change his practice as to the placement of a medical device on patients.

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This medical malpractice case arises out of Dr. Edward Mark’s alleged negligent placement of a halo device on Austin Agerter. Dr. Mark and his medical practice, Neurology, Neurosurgery Spine Clinic of South Georgia, LLC collectively, Mark, appeal from an order of the Superior Court of Lowndes County, which denied in part Mark’s motion in limine to exclude evidence of Mark’s alleged remedial measure. Specifically, the trial court found that evidence of the alleged remedial measure could be introduced to impeach the testimony of one of Mark’s witnesses. Mark contends that this ruling is in error, because no conflict exists between the testimony of his witness and Mark’s decision to change his practice as to the placement of halo devices on his patients. For reasons explained more fully below, we agree with Mark and reverse that part of the trial court’s order which holds that evidence of Mark’s alleged remedial measure is admissible for impeachment purposes.1

A denial of a motion in limine is reviewed for an abuse of discretion, and an abuse of discretion occurs when the trial court misapplies the law. One Bluff Drive v. K. A. P., Inc., 330 Ga. App. 45, 51-52 766 SE2d 508 2014; Thomas v. State, 330 Ga. App. 67, 70 766 SE2d 527 2014. Because a motion in limine is a pretrial determination of the admissibility of evidence, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care. Forsyth County v. Martin, 279 Ga. 215, 221 3 610 SE2d 512 2005. Irrelevant evidence that does not bear directly or indirectly on the question being tried should be excluded. CNL APF Partners v. DOT, 307 Ga. App. 511, 515 705 SE2d 862 2010; Housing Auth. of Macon v. Younis, 279 Ga. App. 599 631 SE2d 802 2006. A trial court errs in denying a motion in limine when there is no circumstance under which the evidence at issue is likely to be admissible at trial. Younis, 279 Ga. App. at 601. Here, the trial court abused its discretion when it misapplied the relevant law.

Mark v. Agerter

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