This page summarizes some of the most significant cases from the Georgia Supreme Court and Court of Appeals issued in 2015. It is adapted from a paper John Hadden presented at a 2016 seminar sponsored by the Institute for Continuing Legal Education in Georgia.
Evidence and Discovery
Not surprisingly, many of 2015's notable cases arose in the area of evidence. Virtually every case that reaches trial involves some dispute over admission of evidence, and the 2013 Evidence Code continues to call for judicial interpretation of its provisions, particularly in areas where the prior Georgia evidence law was modified.
A strong contender for the most significant case of 2015 is Phillips v. Harmon. Phillips was a medical malpractice case involving serious injuries and permanent disabilities sustained by an infant during birth, allegedly due to the negligence of the defendant doctors. Following the child's birth, and with knowledge that there had been an adverse outcome sufficient to trigger an internal investigation, the medical facility failed to preserve paper fetal monitoring strips on which nurses were believed to have made certain notations. The plaintiff sought a jury instruction charging that the plaintiffs were entitled to a rebuttable presumption that the strips would have contained evidence prejudicial to the medical center. The trial court refused to give the charge, and the trial resulted in a defense verdict, but the Supreme Court held that the charge was appropriate and reversed. In doing so, it substantially clarified the standard to be applied when considering whether a party has a duty to preserve evidence.
A brief summary of the state of the law concerning the duty to preserve evidence is as follows: in Silman v. Associates Bellemeade, the Supreme Court previously held that a party's duty to preserve evidence arises when there is “contemplated or pending litigation.” Interpreting this standard, courts had focused on the defendant's “notice” of litigation, and had established a somewhat more limited standard as a result. As the Court of Appeals had held in Phillips below, “contemplation of potential liability is not notice of potential litigation.” (emphasis in original). The Supreme Court in Phillps took a broader view, holding that, in determining a defendant's duty to preserve evidence in the absence of actual notice of litigation,
Notice that the plaintiff is contemplating litigation may also be derived from, i.e., litigation may be reasonably foreseeable to the defendant based on, other circumstances, such as the type and extent of the injury; the extent to which fault for the injury is clear; the potential financial exposure if faced with a finding of liability; the relationship and course of conduct between the parties, including past litigation or threatened litigation; and the frequency with which litigation occurs in similar circumstances.
The Court also noted that a defendant's response to an incident, including any internal investigation, could be relevant to determining the party's duty. In many cases, then, a duty to preserve may arise where the damages, type of injury, or other factors make it likely or foreseeable that litigation may take place.
A handful of other cases addressed more routine matters of application of the Georgia Evidence Code, particularly in the area of hearsay. One area of frequent uncertainty is the admissibility of documents under the business records exception to hearsay set forth in O.C.G.A. § 24-8-803(6). Unlike pre-2013 law, the revised code permits parties to lay a foundation for the hearsay exception through a certification of records, rather than requiring a live custodian or other individual to admit the records. In Hayes v. State, the Supreme Court held that a business records certification under the procedure provided in O.C.G.A. § 24-9-902(11) is not required to be notarized, despite that being the widespread practice. It should be noted that such certifications under O.C.G.A. § 24-9-902(12), applicable to foreign records, do require that the document be signed in a manner that “if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed,” which could require notarization or similar attestation in those circumstances. Further easing the requirements for admissibility of business records, the Court of Appeals held, in Ciras, LLC v. Hydrajet Technologies, LLC, that the records custodian of a successor business that had acquired the records of another business could properly lay a foundation for the predecessor's records: “[i]t is not necessary that the person who actually prepared the business record testify, nor that the document be prepared by the business which has custody of it, so long as other circumstantial evidence suggests the trustworthiness of the record.”
In another notable case of first impression, in Piedmont Newnan Hospital, Inc. v. Barbour, the Court of Appeals approved of the jury's touching of the plaintiff where the plaintiff argued that the defendant's alleged medical malpractice led to a significant temperature differential between the plaintiff's hands. And, addressing another trial-related evidentiary issue, the Court held in Petrenko v. Moseri that the fact that a defendant introduced an exhibit during an evidentiary deposition did not result in the defendant's losing the right to first-and-final closing arguments, as provided under O.C.G.A. § 9-10-186 where the defendant introduces no evidence or admits a prima facie case, where the exhibit was never formally tendered at trial. It further held that the right was not waived due to the fact that defense counsel showed the plaintiff a document to refresh her recollection during cross-examination, where the document was not tendered as evidence.
The appellate courts also issued several noteworthy decisions regarding the discovery process. In Brown v. Howard, the Court of Appeals reiterated that while the mental-health privilege set forth in O.C.G.A. § 24-5-501 is inviolate and that communications with a mental health professional may not be disclosed, not all records regarding mental health treatment are privileged, and therefore they may be subject to discovery. In discussing the situations in which records might be discoverable, the Court noted that
the privilege does not extend to any communications made by the patient to nurses or attendants, unless the nurses or attendants were acting as agents of the attending psychiatrist. Similarly, to the extent that the records in question disclose information or communications made between a mental health professional and persons other than another mental health professional or his or her agent and such communications are relevant to the defense, they would be discoverable under Georgia law. And where no mental health treatment is given or contemplated—for instance, when a court appoints a mental health provider to evaluate a person's mental state as opposed to providing treatment—the mental health privilege is inapplicable.
The Brown decision also approved of the trial judge's requirement that the plaintiff produce a privilege log as contemplated by Rule 26(b)(5)(A) of the Federal Rules of Civil Procedure. Uniform Superior/State Court Rule 5.5, effective June 4, 2015, now covers this issue in state courts.
In a pair of decisions addressing the scope of discovery, the Court of Appeals and Supreme Court endorsed a broad view of discoverability. In Bowden v. The Medical Center, Inc., the Supreme Court considered whether a hospital's billing agreements with various health insurers were relevant in an action involving the reasonableness of the hospital's billing of an uninsured patient. Reversing the Court of Appeals, the Supreme Court held that such documents concerning rates to insured patients were relevant to the reasonableness of the hospital's rates for an uninsured patient, and were therefore discoverable. In Chandler v. Liberty Mutual Fire Insurance Company, the Court of Appeals took a similarly broad view of discoverability and held that the contents of an insurer's claim file were discoverable where there was a dispute over communications between a claimant's prior attorney and the claims adjuster as to whether the insurer had made certain representations about availability of insurance.
The Court of Appeals also addressed a commonly-disputed issue regarding the timing of requests for admissions under O.C.G.A. § 9-11-36, specifically whether such requests can be served after the close of the compulsory discovery period. Typically, discovery procedures must be undertaken within the compulsory discovery period, but, as at least one commentator has noted, Rule 36 admissions should be valid if served outside that period because (1) they do not require the court's compulsory power when no response is filed, as they are deemed admitted by operation of law, and (2) a ruling on a motion to determine sufficiency of answers, where responses to the requests are filed, is not actually an act of “compelling discovery.” In Monolith Companies, LLC v. Hunter Douglas Hospital, Inc., the Court of Appeals appears to have accepted this first rationale to uphold the validity of admissions resulting from requests served after the compulsory period, which served as the basis for a motion for summary judgment. The Court noted that the trial court had not been required to compel compliance with any discovery procedure in order to consider the admissions, due to the self-executing nature of Rule 36 admissions. The Court did note, however, that the party could have availed itself of various options, including a motion for protective order, motion to withdraw admissions, or an objection asserting that the requests were untimely, suggesting that the Court has not entirely foreclosed the possibility that an “untimeliness” argument might be accepted, although the decision as a whole suggested it would not.
Finally, the Court of Appeals addressed a procedural evidentiary matter that comes up with some regularity: the timing of affidavits submitted in connection with motions for summary judgment. Generally, O.C.G.A. § 9-11-6(d) requires that affidavits by the movant be filed with the motion, while O.C.G.A. § 9-11-56 permits the opposing party to file affidavits as late as the day before a summary judgment hearing. In Triple T-Bar, LLC v. DDR Southeast Springfield, LLC, however, the Court found that, in their discretion, “[t]rial courts may consider affidavits which are not filed or served within the time limits contemplated by the statutes,” particularly where the record does not reveal prejudice to the non-moving party.
Since the enactment of tort reform through 2005's Senate Bill 3, apportionment of liability under O.C.G.A. § 51-12-33 has proven to be a repeated source of dispute. Several decisions from the past year have helped clarify the persons or entities against which liability can be apportioned, as well as the basis of apportionment.
In Zaldivar v. Prickett, the Supreme Court considered the following issue of first impression: can a defendant seek to apportion liability to a plaintiff's employer under a theory of negligent entrustment, where the defendant alleges that the plaintiff was partly at fault. Answering in the affirmative, the Court found that the employer, to the extent that there was evidence the plaintiff was an unsafe driver, could be found to be the proximate cause of the plaintiff's injuries, notwithstanding the fact that the plaintiff could not have pursued a tort claim against that employer. Shortly after issuing the Zaldivar decision, the Court reached essentially the same result in Walker v. Tensor Machine, Ltd., over a dissenting opinion arguing that Zaldivar has been incorrectly decided.
In two other cases, the Court of Appeals addressed the propriety of non-apportionment by the jury. In Goldstein, Garber & Salama, LLC v. J.B., the jury returned a verdict against a dental practice and in favor of a patient who was sexually assaulted by a nurse anesthetist employed by the practice. The nurse anesthetist was criminally charged and convicted, and the practice sought to apportion liability to him. Although the criminal actor was on the verdict form, the jury declined to apportion any liability to him, instead apportioning 100% of the liability to the practice. On appeal, the practice alleged, among other things, that the lack of apportionment of any liability to the nurse anesthetist was error. The Court of Appeals disagreed, holding that the jury's result should be sustained. In doing so, it noted that O.C.G.A. § 9-12-4 provides that “[v]erdicts shall have a reasonable intendment and shall receive a reasonable construction. They shall not be avoided unless from necessity.” The Court rendered a similar outcome, involving a non-criminally liable nonparty, in Scapa Dryer Fabrics, Inc. v. Knight. Scapa was an asbestos exposure case, and the trial court upheld a verdict for the plaintiff despite the jury's failure to apportion fault to some, but not all, nonparties, with the Court noting that the defendant bore “a burden to establish a rational basis for apportioning fault to a nonparty and whether it met that burden given the trial evidence presented was a matter for the jury to determine.”
Professional and Medical Malpractice
Along with apportionment, cases involving medical and other professional malpractice have been at the forefront of developing law since the tort reform amendments of 2005, and in this case, since the earlier rounds of tort reform beginning in the 1980s. Among the most common issues raised in these cases are interpretation of the expert affidavit requirements of O.C.G.A. § 9-11-9.1 and the expert witness requirements of O.C.G.A. § 24-7-702.
In Gala v. Fisher, the Supreme Court held, as a matter of first impression, that a plaintiff could file an amended O.C.G.A. § 9-11-9.1 affidavit prepared by a new expert where the original expert was deemed unqualified. Where an affidavit is alleged to be defective, O.C.G.A. § 9-11-9.1 provides that “the plaintiff may cure the alleged defect by amendment pursuant to Code Section 9-11-15 within 30 days of service of the motion alleging that the affidavit is defective.” The statute is not clear, however, whether this amendment is limited to supplementation of the affidavit by the original expert, or whether a new expert can be substituted. Concluding that substitution by a new expert is allowable, the Court noted that because the statute contained “no express limitation on the nature of the alleged defect subject to remedy,” it should “be construed in a manner consistent with the liberality of the [Civil Practice Act].”
Turning to the qualification of an expert to provide an affidavit under O.C.G.A. § 9-11-9.1 in light of the special requirements for medical experts under O.C.G.A. § 24-7-702(c)(2), the Court of Appeals in Zarate-Martinez v. Echemendia upheld the trial court's rejection of an expert who testified in her affidavit that she had performed “many” operations like the one at issue in the case over the past five years. The trial court found this to be vague, noting that “the Court has no idea what the term ‘many' means and cannot, therefore, assess whether [plaintiff's expert] has the ‘appropriate level of knowledge.'” Demonstrating the discretion afforded trial judges in their role as gatekeeper regarding expert qualification matters, the Court of Appeals affirmed the trial court's determination. This case vividly illustrates the difficulties plaintiffs can face in providing sufficient specificity to meet the threshold requirements of O.C.G.A. § 9-11-9.1.
Finally, in another apparent case of first impression, the Court of Appeals held in Chadwick v. Brazell that the expert witness requirements of O.C.G.A. § 24-7-702 do not apply to a defendant physician's own testimony. Construing the statutory text, the Court found that “the legislature intended the qualification requirement to apply to a third-party expert, not a defendant physician, as the statute refers to “the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue.” The Court of Appeals had previously held, prior to the expert witness evidence amendments of 2005 and 2013, that professional malpractice defendants could testify on their own behalf; the Court of Appeals expressly rejected the plaintiff's argument that the Evidence Code amendments required that expert qualification rules apply to all witnesses providing expert opinions, including defendants.
Claims against governmental entities and employees are among the most difficult to pursue due to constitutional and statutory immunities applicable to both. Moreover, different rules govern the immunities of the state, counties, municipalities, and government employees, further complicating the analysis required to determine whether sovereign immunity (applicable to the entity) or official/qualified immunity (applicable to the employee or official) can be overcome. A pair of 2015 decisions help clarify this analysis in a couple of contexts.
In Eshleman v. Key, the plaintiff alleged that a minor child was injured when a county police officer allowed a police dog to escape its kennel and attack the child. The claim was brought against the officer directly, rather than the county, because counties enjoy near-absolute immunity from suit in most context, at least under state law. Therefore, analysis of the case focused on whether the officer was entitled to official immunity, also called qualified immunity. The Court stated the general principles of this immunity as follows:
As a general rule, a county law enforcement officer enjoys official immunity from a lawsuit alleging that she is personally liable in tort for her performance of official functions. There are, however, two important exceptions to this rule. First, an officer has no immunity to the extent that she acted with malice or an intent to injure. Second, an officer has no immunity for negligence in the performance of a ministerial function.
Thus, unless the government employee's actions are malicious or intentional, immunity can be overcome only upon a finding that the employee negligently performed a ministerial function. Turning to the distinction between discretionary functions, for which immunity applies, and ministerial functions, for which it can be waived, the Court noted that
A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.
In this case, the question was whether the officer's obligation to prevent the animal from escaping was “simple, absolute, and definite.” Determining that there was at least a jury question on this issue, particularly given the statutory provision establishing liability for harms caused by vicious animals under O.C.G.A. § 51-2-7, the Court of Appeals had held that the trial court properly denied summary judgment to the officer. The Supreme Court, however, disagreed with the trial court and Court of Appeals, and reversed. It held that, although the state statute and local ordinances appeared to establish definite duties with respect to vicious animals, they left the officer with discretion in the manner in which those duties were to be accomplished and did not set forth a specific task on the part of an officer that was negligently performed. Therefore, it held that the officer was entitled to official immunity, and that summary judgment was proper.
In contrast to the almost total immunity of counties, sovereign immunity as to municipalities (cities) may be overcome under a variety of theories. City of Fitzgerald v. Caruthers illustrates one such immunity exception: liability of the city for failure to keep its streets and sidewalks in repair, established as a ministerial duty under O.C.G.A. § 32-4-93. The Court noted that under this statute,
municipalities generally have a ministerial duty to keep their streets in repair, and they are liable for injuries resulting from defects after actual notice, or after the defect has existed for a sufficient length of time for notice to be inferred. This Court has held that the term “defects” covered by this Code section includes defects brought about by the forces of nature and by persons and which render the street unsafe and includes objects adjacent to and suspended over the street.
Here, the plaintiff was injured when a rotten limb fell from a city-maintained tree, hitting him as he was standing on a curb. The evidence showed that a city official went to observe the scene after the injury, and that the official determined that the tree was dying and should be removed. The record also contained evidence that the city had no specific procedure in place to inspect trees, but that public works employees were simply advised to be aware of their surroundings and to report any apparent hazards. Finding that there was a lack of records showing whether appropriate inspections had been performed, and that there was evidence that the city should have been able to discover the danger posed by the tree by visual inspection, the Court of Appeals concluded that a jury question remained whether the city faced liability under O.C.G.A. § 32-4-93.
Uninsured Motorist Insurance
Claims for uninsured (and underinsured) motorist coverage present another area of complexity calling for frequent appellate consideration. The Uninsured Motorist (UM) Act, O.C.G.A. § 33-7-11, establishes a comprehensive statutory scheme governing such claims, including claims for bad-faith against insurers that fail to pay valid claims. A number of recent cases have addressed various aspects of the UM Act.
Under a 2009 statutory amendment to the UM Act, insurers are authorized to include “non-duplication of coverage” provisions in uninsured motorist policies for benefits paid under medical payments coverage or workers' compensation law. Insurers have argued that such provisions entitle them to an offset or reduction of uninsured motorist coverage to the extent of these other payments. In Mabry v. State Farm Mutual Automobile Insurance Co., however, the Court of Appeals ruled that such non-duplication provisions d0 not prevent an insured from seeking coverage where the damages sought arise from other categories of damages to which the medical payments or workers' compensation benefits did not apply, such as pain and suffering and future medical expenses. This was true in Mabry even though the medical payments and workers' compensation benefits substantially exceeded the amount of uninsured motorist coverage. Thus, contrary to the position often taken by insurers, O.C.G.A. §33-7-11(i) does not allow an absolute offset for any such benefits paid, but merely precludes recovery for those benefits without affecting the availability of uninsured motorist coverage for other damages.
A common pitfall for claimants seeking uninsured motorist coverage is the nearly universal requirement of insurance policies that the insurer be notified of the collision shortly after it occurs. Policy requirements vary, and often state a specific period as short as 30 days, although many policies use non-specific terms and simply require notice within a reasonable time, or sometimes “as soon as reasonably possible” or a similar variation. The appellate courts have held that these provisions constitute a condition precedent to recovery, and failure to abide by them will preclude recovery. A recent case illustrates the necessity of a careful review of the insurance policy to determine the actual requirements. In King-Morrow v. American Family Insurance Company, the result of a close reading was that the claimant could pursue coverage despite a lack of timely notice, due to a quirk in the policy's terms.
It was undisputed in this case that notice of the collision was not provided by the claimant, who was the mother of the named insured, until almost two years after the fact. The policy at issue required that if “you” have an accident or loss, “you” must provide notice of the loss and provide certain information. The policy, however, defined the term “you” to include only the named insured and his or her spouse, and the claimant was neither. Reiterating the rule that policy terms must be construed as a reasonable insured would understand them, and that where the policy could be reasonably interpreted in two or more ways, it must be construed in favor of the insured, the Court concluded that the notice provision applied only to the named insured or spouse, not other potential insureds. Therefore, the trial court had erred in granting summary judgment to the insurer based on the erroneous conclusion that notice was required and had not been given in a timely manner.
O.C.G.A. § 33-7-11(j) permits an action against a UM carrier based on its failure to pay benefits where the claimant has submitted a proper demand for payment to the UM carrier and the claimant ultimately recovers at least the amount demanded. In Travelers Home and Marine Insurance Company v. Castellanos, the injured claimant obtained a judgment against the at-fault driver, but the driver's insurer denied coverage due to the driver's alleged non-cooperation because of his absence at trial. Where a liability insurer has legally denied coverage to its at-fault insured, the driver is considered uninsured and UM coverage is available under O.C.G.A. § 33-7-11(b)(1)(D). In Castellanos, which was a separate subsequent bad faith action against the UM carrier filed after judgment against the at-fault driver, the only evidence presented by the claimant of the liability insurer's coverage denial was the tortfeasor's absence from trial. A divided Court of Appeals held that the insurer had the burden of proving its defense regarding the lack of evidence that coverage was denied, and therefore the trial court had erred in granting summary judgment to the UM carrier. Reversing, the Supreme Court concluded that the plaintiff seeking UM benefits had the burden of proving the tortfeasor's uninsured status, and therefore held that due to the lack of evidence presented that the underlying liability insurance carrier had “legally denied” coverage, summary judgment had been properly granted to the UM carrier. Therefore, in a claim against a UM carrier, it is essential that the plaintiff present competent evidence demonstrating the uninsured status of the tortfeasor.
The UM Act also permits recovery of benefits where damages are caused by an unknown driver (such as where the at-fault motorist flees the scene), and these claims are typically brought against a “John Doe” defendant, with service also being made upon the UM carrier. In order to pursue such a claim, if there is no “actual physical contact” between the unknown vehicle and the claimant's vehicle, O.C.G.A. § 33-7-11(b)(2) requires corroboration by an eyewitness other than the claimant. In American Alterative Insurance Company v. Bennett, the plaintiff claimed that a log protruding from a tractor-trailer struck his vehicle, resulting in injuries. The Court had previously held in State Farm Fire & Casualty Company v. Guest that the “actual physical contact” requirement was met where the claimant collides with an “integral part” of an unknown vehicle. Noting that a log is not an “essential” part of the unknown vehicle, the Bennett opinion declined to relieve the plaintiff of the requirement of presenting a corroborating witness. The trial court's denial of the insurer's motion for summary judgment was therefore reversed.
Notably, the Court also emphasized that Guest was non-precedential, and appeared to cast doubt on the continued validity of the “integral part” analysis in a John Doe case. Earlier cases had declined to extend this analysis to items that had already fallen off of vehicles at the time of impact, but this appears to be the first case considering impact with cargo still carried by the unknown vehicle.
Subrogation and Liens
Lien claims, or claims for subrogation or reimbursement, are an increasingly common factor in tort cases. The appellate courts addressed several types of these claims in 2015. In analyzing the validity of such claims and whether or not they must be paid, attorneys should be cognizant of the ethical duties set forth in Rule. 1.15(I) of the Georgia Rules of Professional Conduct. The rule prohibits attorneys from disbursing funds to clients where there a third-party asserts a valid, or at least ostensibly valid, claim to those funds. The Rule was recently amended to clarify that a lawyer's duty toward third-party claimants is limited to statutory liens, final judgments setting forth the disposition of the funds, and written agreements between third-parties and the client or attorney (or both) to pay claims from the proceeds of a verdict of settlement. The Rule also provides a “safe harbor” provision allowing attorneys to disburse funds to clients where the attorney “reasonably concludes that there is a valid defense to such lien, judgment, or agreement.”
The Court of Appeals addressed the viability of workers' compensation liens in Best Buy Company v. McKinney. O.C.G.A. § 34-9-11.1 allows a workers' compensation employer and insurer to assert a subrogation lien against the injured employee's recovery against a third party where the employer or insurer has paid benefits resulting from the third party's negligence or other wrongful act. The employer or insurer can only recover on the lien, however, where the employee has been completely compensated for all economic and noneconomic losses incurred as a result of the injury, taking into account both the third-party recovery and workers' compensation benefits. As a practical matter, proof that the employee has been completely compensated is difficult, and there do not appear to be any reported appellate decisions affirming such a finding. The difficulty stems largely from the fact that workers' compensation benefits do not include the claimant's pain and suffering, which are difficult to quantify when seeking to enforce a lien.
The employer in McKinney sought to enforce its lien by presenting the testimony of an attorney with experience litigating tort cases similar to McKinney's. The attorney testified that, in his opinion, and based on comparisons with prior similar cases the attorney had handled, McKinney had been completely compensated as provided by O.C.G.A. § 34-9-11.1. On cross-examination, the testifying attorney admitted that he had not considered various aspects of McKinney's claims in reaching his conclusion, and also admitted that the past cases he relied upon may not have been directly comparable to McKinney's. Therefore, the trial court's factual findings were upheld. Additionally, the Court held that because the settlement was for a lump sum, the trial court was entitled to conclude that Best Buy had not demonstrated what portion of the settlement was allocated to economic versus noneconomic losses, further demonstrating that the employer had failed to carry its burden of proving its entitlement to collect on the lien.
In the context of medical care liens (also called hospital liens) under O.C.G.A. § 44-14-470 et seq., the Supreme Court in Kight v. MCG Health, Inc. declined to adopt certain language in the Court of Appeals' earlier ruling in the case that could have had far-reaching implications detrimental to tort claimants. The Court of Appeals appeared to conclude that a medical provider, having received health insurance payments under a rate provided by contract, could nevertheless still assert a right under the lien statutes to payment of the full balance of the bill to the extent the balance exceeded those payments. The Court of Appeals, in its opinion in Medical Center, Inc. v. Bowden, reiterated that the hospital was entitled under the lien statute to the full amount of its bill, “not merely the lower reimbursement rate contracted between the insurance company and the hospital.”
Although the Supreme Court in Kight affirmed the lower court's main holding regarding the validity of a lien, it disclaimed this “full payment” portion of the decision:
We note that the Court of Appeals opinion, in dicta, discusses wide-ranging applications of the hospital lien law which simply are not relevant to the facts of the case currently before this Court. This opinion affirms the Court of Appeals for the reasons given above, and we neither reach nor adopt any of the dicta and reasoning except as set forth herein.
Shortly thereafter, the Supreme Court reviewed the Court of Appeals' Bowden decision, and similarly disclaimed the lower court's analysis on this point.
 Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596 (2015). In addition to the ruling regarding spoliation discussed herein, the Court also ruled, as an issue of first impression, that parties have a right to be present during any communications between the judge and jury. This was already established law in criminal cases, but this case expanded the right to civil actions.
 Silman v. Associates Bellemeade, 286 Ga. 27, 685 S.E.2d 277 (2009) (citing Baxley v. Hakiel Indust., 282 Ga. 312, 647 S.E.2d 29 (2007)).
 Phillips v. Harmon, 328 Ga. App. 686, 700, 760 S.E.2d 235, 245 (2014) (quoting Kitchens v. Brusman, 303 Ga. App. 703, 694 S.E.2d 667 (2010)).
 Phillips v. Harmon, 297 Ga. 386, 397, 774 S.E.2d 596, 605 (2015).
 O.C.G.A. §§ 24-8-803(6), 24-9-902(11), (12).
 Hayes v. State, 298 Ga. 98, 779 S.E.2d 609 (2015).
 Ciras, LLC v. Hydrajet Tech., LLC, 333 Ga. App. 498, 773 S.E.2d 800 (2015) (citing U.S. v. Hawkins, 905 F.2d 1489 (11th Cir. 1990)); see also Roberts. v. Community & Southern Bank, 331 Ga. App. 364, 771 S.E.2d 68 (2015) (“a successor bank can rely upon and integrate into its own business records its predecessor's business records so long as a proper foundation is laid under OCGA § 24–8–803(6).”) (citation and footnote omitted).
 Piedmont Newnan Hosp., Inc. v. Barbour, 333 Ga. App. 620, 774 S.E.2d 822 (2015).
 Petrenko v. Moseri, 333 Ga. App. 14, 775 S.E.2d 272 (2015).
 Brown v. Howard, 334 Ga. App. 182, 778 S.E.2d 810 (2015).
 Brown v. Howard, 334 Ga. App. 182, 186-87, 778 S.E.2d 810, 814 (2015) (internal quotations, citations, and formatting omitted).
 Bowden v. The Med. Ctr., Inc., 297 Ga. 285, 773 S.E.2d 692 (2015). The Court also disclaimed certain language from the Court of Appeals decision that will be addressed below in discussion of the Kight case.
 Chandler v. Liberty Mut. Fire Ins. Co., 333 Ga. App. 595, 773 S.E.2d 876 (2015).
 Wayne M. Purdom, Georgia Civil Discovery, §15.4 (Thomson Reuters 2015-16 ed.).
 Monolith Companies, LLC v. Hunter Douglas Hosp., Inc., 333 Ga. App. 898, 777 S.E.2d 726 (2015).
 Triple T-Bar, LLC v. DDR SE Springfield, LLC, 330 Ga. App. 847, 849, 769 S.E.2d 586, 589 (2015) (citing Kropp v. Roberts, 246 Ga. App. 497, 499, 540 S.E.2d 680 (2000)).
 Zaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (2015).
 Walker v. Tensor Mach. Ltd., 779 S.E.2d 651 (Ga. 2015).
 Scapa Dryer Fabrics, Inc. v. Knight, 332 Ga. App. 82, 770 S.E.2d 334 (2015), cert. granted (Sept. 8, 2015).
 Scapa Dryer Fabrics, Inc. v. Knight, 332 Ga. App. 82, 90, 770 S.E.2d 334, 342 (2015) (internal formatting and quotations omitted).
 Gala v. Fisher, 296 Ga. 870, 770 S.E.2d 879 (2015).
 Gala v. Fisher, 296 Ga. 870, 875, 770 S.E.2d 879, 883 (2015) (quoting Porquez v. Washington, 268 Ga. 649, 492 S.E.2d 665 (1997)).
 Zarate-Martinez v. Echemendia, 332 Ga. App. 381, 772 S.E.2d 826 (2015), cert. granted (Sept. 8, 2015).
 Chadwick v. Brazell, 331 Ga. App. 373, 771 S.E.2d 75 (2015).
 Chadwick v. Brazell, 331 Ga. App. 373, 378, 771 S.E.2d 75, 79-80 (2015).
 Loving v. Nash, 182 Ga. App. 253, 355 S.E.2d 448 (1987). In 2005, Georgia adopted in substantial part Federal Rule of Evidence 702, then codified at O.C.G.A. § 24-9-67.1. This statute was recodified, in modified form, as O.C.G.A. § 24-7-702 in the 2013 Evidence Code amendments.
 Eshleman v. Key, 297 Ga. 364, 774 S.E.2d 96 (2015).
 One exception to this immunity is for automobile collisions, as provided by O.C.G.A. § 36-92-1 et seq., which provides a waiver for up to $500,000 per person, and $700,000 per occurrence, with higher limits possible if insurance is purchased. This provision is also applicable to municipalities. See, e.g., City of Atlanta v. Lockett, 312 Ga. App. 19, 717 S.E.2d 529 (2011). Additionally, federal law, such as 28 U.S.C.A. § 1983, may provide additional remedies for claims against counties.
 Eshleman v. Key, 297 Ga. 364, 365, 774 S.E.2d 96, 98 (2015) (internal citations omitted).
 Eshleman v. Key, 297 Ga. 364, 366, 774 S.E.2d 96, 99 (2015).
 Eshleman v. Key, 326 Ga. App. 883, 755 S.E.2d 926 (2014).
 City of Fitzgerald v. Caruthers, 332 Ga. App. 731, 774 S.E.2d 777 (2015).
 City of Fitzgerald v. Caruthers, 332 Ga. App. 731, 733, 774 S.E.2d 777, 779 (2015).
 Mabry v. State Farm Mut. Auto. Ins. Co., 334 Ga. App. 784, 780 S.E.2d 533 (2015).
 See, e.g., Eells v. State Farm Mut. Auto. Ins. Co., 324 Ga. App. 901, 752 S.E.2d 70 (2013). It should be noted that these provisions do not generally require notice of a claim, but simply notice of the collision.
 King-Morrow v. Am. Fam. Ins. Co., 780 S.E.2d 451 (Ga. Ct. App. 2015).
 Travelers Home and Marine Ins. Co. v. Castellanos, 297 Ga. 174, 773 S.E.2d 184 (2015).
 Am. Alternative Ins. Co. v. Bennett, 334 Ga. App. 713, 780 S.E.2d 686 (2015).
 State Farm Fire & Casualty Company v. Guest, 203 Ga. App. 711, 417 S.E.2d 419 (1992) (physical precedent only; see Court of Appeals Rule 33).
 See, e.g., Hohman v. State Farm Fire & Cas. Auto. Ins. Co., 283 Ga. App. 430, 641 S.E.2d 650 (2007) (ladder in roadway); Scott v. Allstate Ins. Co., 200 Ga. App. 296, 407 S.E.2d 492 (1991) (box in roadway; plaintiff contended box fell from truck, but lacked corroboration of this claim).
 Georgia Rules of Professional Conduct, Rule 1.15(I)(b).
 Best Buy Co. v. McKinney, 334 Ga. App. 42, 778 S.E.2d 51 (2015).
 Kight v. MCG Health, Inc., 296 Ga. 687, 769 S.E.2d 923 (2015); MCG Health, Inc. v. Kight, 325 Ga. App. 349, 750 S.E.2d 813 (2013).
 Med. Ctr., Inc. v. Bowden, 327 Ga. App. 714, 717, 761 S.E.2d 116, 119 (2014).
 Kight v. MCG Health, Inc., 296 Ga. 687, 690, 769 S.E.2d 923, 925 (2015).
 Bowden v. The Med. Ctr., Inc., 297 Ga. 285, 773 S.E.2d 692 (2015). This case is discussed infra with respect to its holding concerning the scope of discovery.