The Georgia Court of Appeals affirmed a verdict in favor of plaintiffs in a wrongful death case. After the decedent became pregnant, two ultrasounds showed a mass on the right adnexa, suspected of being a dermoid. The results were made available to one of the defendant obstetricians, who did not mention it during an office visit with the patient. There was no mention of the mass in the medical records, which also stated that the adnexa were normal. The obstetricians referred the patient to maternal-fetal medicine but did not mention the mass.

Six months after delivery, the patient presented to an emergency department with abdominal pain and fever. A CT scan showed a mass in her abdomen and she was taken to surgery. During surgery, the mass measured 11 centimeters and had ruptured, spilling dermoid contents into the abdomen. Pathology showed the lesion was cancerous. The patient died a year and a half later.

Defendants moved to exclude the testimony of an expert on the issue of causation, specifically the five year survival rate if the tumor had been diagnosed earlier. The trial court initially granted the motion, but then reconsidered and vacated the order. The jury returned a verdict for $8.5 million. The trial court then denied a motion for new trial.

On appeal, Defendants argued that the expert’s causation opinion was unreliable under a Daubert analysis because he reasoned from general epithelial cancer statistics and not statistics specific to this type of cancer. The Court held that Defendants failed to show an abuse of discretion and affirmed. Notably, the Court pointed out that the proponent of expert testimony does not have to show that the testimony is “scientifically correct,” only that it is reliable by a preponderance of the evidence. Here, the expert’s opinions were supported by and consistent with multiple articles and supported by testimony of other witnesses. Accordingly, the trial court was within its discretion to admit the testimony.

Defendants also argued that the verdict was inconsistent because the jury awarded $0 for wrongful death but $6,956 for funeral and burial expenses. The Court disagreed, holding that the jury could have reasonably found that Plaintiff carried his burden of proving that the negligence was the immediate cause of death, justifying the award of funeral expenses, but did not carry his burden of proving wrongful death damages because of “sharply conflicting evidence” regarding life expectancy. Notably, two judges of the panel concurred in the judgment on this point only, which makes it physical precedent.

Take-home: Dabuert motions go to reliability of the basis for the testimony, not whether the conclusions are right or wrong, which are issues for the jury.

The case is Preferred Women’s Healthcare v. Sain, __ S.E.2d __ (Ga.Ct.App. May 31, 2023).