                              THIRD DIVISION
                             MCFADDEN, C. J.,
                         DOYLE, P. J., and HODGES, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               https://www.gaappeals.us/rules

                    DEADLINES ARE NO LONGER TOLLED IN THIS
                    COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
                    THE TIMES SET BY OUR COURT RULES.


                                                                      June 24, 2020



In the Court of Appeals of Georgia
 A20A0113. HASKINS et al. v. GEORGIA NEUROSURGICAL
     INSTITUTE, P. C. et al.

      MCFADDEN, Chief Judge.

      This appeal from a trial court’s final judgment entered upon a jury verdict

challenges various evidentiary rulings by the court. Because the challenged rulings

were not erroneous or amounted to harmless error, we affirm.

      1. Facts and procedural posture.

      “A jury verdict, after approval by the trial court, and the judgment thereon will

not be disturbed on appeal if supported by any evidence, in the absence of any

material error of law.” Eagle Jets, LLC v. Atlanta Jet, Inc., 321 Ga. App. 386, 392 (2)

(740 SE2d 439) (2013) (citation and punctuation omitted). “[T]he jurors are the sole

and exclusive judges of the weight and credit given the evidence. The appellate court
must construe the evidence with every inference and presumption in favor of

upholding the verdict, and after judgment, the evidence must be construed to uphold

the verdict even where the evidence is in conflict.” Turner Broadcasting System v.

McDavid, 303 Ga. App. 593, 594 (693 SE2d 873) (2010) (citation and punctuation

omitted).

      So construed, the evidence shows that on April 15, 2013, Michael Haskins

went to see Dr. Richard Rowe about lower back pain. Haskins reported to the doctor

that he had hurt his back in 2000; that his back pain had progressively gotten worse;

that he had not had surgery on his lumbar spine; but that he had undergone other

surgeries, including cervical spine fusion surgery and pelvic surgery for a traumatic

injury. A magnetic resonance imaging (“MRI”) scan of Haskins’ back showed that

he had a protruding disc in his lumbar spine, and a subsequent computed tomography

(“CT”) scan also showed the disc protrusion. Dr. Rowe discussed various treatment

options with Haskins, who opted to undergo a discectomy, a surgery to remove the

protruding disc material pressing on nerves.

      Dr. Rowe performed the lumbar discectomy on June 13, 2013. In the operating

room after the surgery, Haskins awoke and was able to move his feet, so he was taken

to a recovery room. Dr. Rowe went to the waiting area and told Haskins’ wife that the

                                         2
surgery had gone well, that Haskins was moving, and that everything looked fine. But

approximately 30 minutes later, the doctor was notified by nurses that Haskins could

not move his feet. Dr. Rowe went to the recovery room, examined Haskins, and

diagnosed him with cauda equina syndrome (“CES”) based on symptoms indicating

possible spinal nerve injury. Dr. Rowe ordered another MRI scan of Haskins’ lumbar

spine to see if there was a hematoma or a herniated disc pressing on nerves and

causing the CES. The MRI performed shortly after the surgery did not show either a

hematoma or herniated disc, but it did show that there was still some stenosis, or

narrowing, of the spinal canal. Dr. Rowe then performed a laminectomy, removing

bone in order to make more room for the spinal nerves. After the second surgery,

Haskins still could not move his feet and had other neurological deficits. He was

transferred to a spinal rehabilitation center, where he spent ten days, and has

continued to suffer neurological problems since the surgeries, including difficulty

walking, bowel and bladder control, and erectile dysfunction.

      Haskins and his wife, Haley Haskins, filed a medical malpractice complaint

against Dr. Rowe and his employer, Georgia Neurosurgical Institute, P. C., alleging

that the doctor had negligently caused nerve damage during the discectomy. At trial,

the parties presented, among other evidence, opposing expert witnesses. The

                                         3
Haskinses’ expert testified that Dr. Rowe had breached the applicable standard of

care in two ways – by over-retracting nerves during the discectomy and by

performing the discectomy in the first place, rather than performing only a

laminectomy. The defendants’ expert refuted the opinions of the plaintiffs’ expert,

explaining that it was physically impossible for Dr. Rowe to have over-retracted the

nerves during the discectomy due to the space in which the operation was performed

and testifying that it was appropriate and within the standard of care for Dr. Rowe to

have first performed the discectomy. The defense expert further opined that a possible

cause of the CES was the occurrence of a spinal cord stroke during the discectomy.

      The jury returned a verdict in favor of the defendants. The trial court entered

judgment on the verdict, ordering that the defendants be discharged with no recovery

by the plaintiffs. The Haskinses filed a motion for new trial, which the trial court

denied. The Haskinses then brought this appeal.

      2. Journal article.

      While cross-examining the Haskinses’ expert, defense counsel was allowed to

ask him about a passage in a journal article written by partners of Dr. Rowe that

concerned CES in lumbar discectomy patients and stated: “Although the origin of the

condition has remained unknown, several theories have been proposed to explain the

                                          4
underlying pathogenetic mechanism. In the vast majority of these cases, no

explanation based on immediate postoperative MR imaging is usually recognized.”

The Haskinses contend that the trial court erred in allowing this questioning because

the article was hearsay and did not fall within the hearsay exception set forth in

OCGA § 24-8-803 (18), which allows the use of learned treatises established as

reliable authority for cross-examination of an expert.

             However, pretermitting whether the trial court erred, any error
      was harmless. The new Evidence Code continues Georgia’s existing
      harmless error doctrine for erroneous evidentiary rulings. See OCGA §
      24-1-103 (a) (“Error shall not be predicated upon a ruling which admits
      or excludes evidence unless a substantial right of the party is affected.”).
      In determining whether the error was harmless, we review the record de
      novo and weigh the evidence as we would expect reasonable jurors to
      have done so. The test for determining nonconstitutional harmless error
      is whether it is highly probable that the error did not contribute to the
      verdict.

Perez v. State, 303 Ga. 188, 190-191 (2) (811 SE2d 331) (2018) (citation and

punctuation omitted). See also Hillman v. Aldi, Inc., 349 Ga. App. 432, 441 (1) (b)

(825 SE2d 870) (2019) (erroneous evidentiary rulings are subject to the harmless

error doctrine and where erroneously admitted evidence is cumulative of properly

admitted evidence, the error is harmless).




                                           5
      The Haskinses argue that the use of the article was harmful because it bolstered

the defense claim that a stroke may have caused the CES. But contrary to that

argument, the article made no mention of stroke as a cause of CES. And to the extent

the appellants are claiming that the article helped the defense by explaining why there

was no stroke shown on the post-operation MRI, the article provided the same benefit

to the Haskinses by supporting their expert’s explanation as to why no over-retracted

nerve damage was shown on the MRI. It is undisputed that the MRI performed

shortly after the discectomy in this case did not show the cause of the CES; indeed,

Dr. Rowe and the experts on both sides gave testimony to that effect. Under the

circumstances, we find that it is highly probable that the brief questioning about the

article did not contribute to the verdict. Compare Moore v. WellStar Health System,

349 Ga. App. 834, 845-846 (5) (824 SE2d 787) (2019) (erroneous admission of

hearsay evidence that did not satisfy the learned treatise exception of OCGA § 24-8-

803 (18) was not harmless where it was improperly used to impeach plaintiff’s expert

witness on core issue of the standard of care and to conflate certain expert witness

guidelines with the standard of care issues reserved for the jury).

      3. Informed consent.



                                          6
      The appellants contend that the trial court erred in allowing the defense to

introduce evidence of the informed consent form Haskins signed before surgery. We

disagree.

      Haley Haskins testified on direct examination that before the surgery, Dr. Rowe

had called the discectomy “simple” and had “referred to it as easy.” She further

testified that the day prior to surgery, she and her husband had met with Dr. Rowe,

that the doctor had read something, but that they had not seen or been provided with

any papers. On cross-examination, defense counsel questioned her about that meeting

and whether Dr. Rowe had explained the surgery and risks in detail, showing her the

informed consent form signed by her husband indicating that such information had

been fully explained. She conceded that it was her husband’s signature on the form,

but she did not concede that the surgery and risks were fully explained, and instead

responded simply that the doctor had “read something very monotone.”

      Thereafter, during its jury instructions, the trial court expressly charged the jury

that informed consent was not a defense to the medical malpractice claims. As the

court explained to the jury:

      The question of whether Mr. Haskins gave consent to the surgery in
      question is not to be considered by you. Informed consent is not a
      defense to allegations of medical negligence and does not relieve a

                                           7
      physician from the duty to exercise that degree of care or skill ordinarily
      exercised by the profession generally under similar conditions and like
      surrounding circumstances.

      “A trial court’s decision regarding the admission or exclusion of evidence is

reviewed for an abuse of discretion.” Steen-Jorgensen v. Huff, 352 Ga. App. 727, 732

(3) (835 SE2d 707) (2019) (citation and punctuation omitted). In this case, “[w]e find

no abuse of discretion. Even though the consent form was not relevant to the issue of

liability in the case, it was admissible to impeach [the witness] on her testimony that

[the doctor had described the surgery as simple and had not adequately] informed

[them] that there was any risk of complications connected to the surgery.” Powell v.

Amin, 256 Ga. App. 757, 762 (3) (569 SE2d 582) (2002) (finding no harmful error

where evidence of informed consent admitted during cross-examination of witness

and court later instructed jury that informed consent was not a defense to malpractice

claims). See also Flournoy v. Goble, 256 Ga. App. 722, 724 (1) (569 SE2d 861)

(2002).

      4. Rebuttal testimony.

      The Haskinses complain that the trial court erred in not allowing them to

introduce rebuttal evidence in the form of deposition testimony of an expert witness.

It appears that the trial court excluded the deposition testimony solely because the

                                          8
expert was not identified by the plaintiffs as a rebuttal witness until after the deadline

set in a scheduling order for identification of such witnesses. As our Supreme Court

recently held, where a court excludes a witness “based solely upon a party’s failure

to meet a deadline in a scheduling order without considering any other factors, that

court will have abused its discretion.” Lee v. Smith, 307 Ga. 815, 821-822 (838 SE2d

870) (2020) (finding abuse of discretion in trial court’s exclusion of rebuttal expert

witness based solely on late identification of witness).

      But such an abuse of discretion was harmless. The appellants contend that they

were harmed because they needed the deposition testimony to rebut the defense

expert’s testimony that an MRI is not the “gold standard” for diagnosing a spinal

stroke and that the MRI in this case might be consistent with a stroke. Pretermitting

the fact that the term “gold standard” was never defined by any expert, the deposition

testimony did not actually rebut the defense expert’s testimony and it would have

been merely cumulative of other properly admitted expert testimony.

      The defense expert testified that an MRI is a good diagnostic study and shows

things well; that you can see a spinal stroke on an MRI; but that an MRI is not perfect

and can miss things, including a stroke. He further testified that no one knows for

certain what caused the CES in this case and that an MRI is not the gold standard for

                                            9
determining if there was a stroke because the only way to know for sure if there was

a stroke would be to take a piece of Haskins’ spinal cord and look at it under a

microscope. He acknowledged that a stroke did not appear on the MRI done on the

day of the surgery. But he noted that the Haskinses’ own expert had testified that on

a second MRI taken several months after the surgery, there was an enhancement of

nerves which indicated that the nerves were dying. The defense expert further opined

that he believed the nerves dying was consistent with his theory of a stroke.

      The deposition testimony that the Haskinses sought to introduce in rebuttal was

from an expert who did not testify at trial. When that expert was asked if he knew

what the gold standard was for diagnosing a spinal stroke, he deposed, “Right now

I would think it would be MR, but, you know, we rarely diagnose it. That’s where you

would start.” He further deposed that neither the MRI done on the day of surgery nor

the MRI done three months later showed a spinal stroke.

      Contrary to the appellants’ arguments, this brief deposition testimony did not

address, let alone rebut, the testimony from the defense expert. As an initial matter,

the defense expert’s trial testimony concerning the gold standard for diagnosing a

stroke was in regards to this specific case, whereas the deposed expert was making

a more generalized statement. Moreover, in making such a generalization, the

                                         10
deponent was not asked to compare an MRI to an examination of a piece of spinal

cord under a microscope, as suggested by the defense expert, and he gave no opinion

rebutting the defense expert’s testimony that such an examination was the only way

to be certain about whether there was a spinal stroke in this case. Likewise, the

deponent was not asked, and gave no opinion, about whether there was an indication

of nerves dying on the second MRI and whether that would be consistent with a

stroke.

      Additionally, the brief deposition testimony cited by the appellants was, at best,

merely cumulative of trial testimony already given by the Haskinses’ expert. Their

trial expert testified that an MRI is a good test to show a stroke, that a stroke shows

up very easily on an MRI, that if Haskins had suffered a spinal stroke it would have

shown up on an MRI, and that there was no evidence to suggest any kind of stroke

on either post-surgery MRI done in this case. Under these circumstances, we find no

reasonable probability that exclusion of the deposition testimony contributed to the

verdict since it did not actually rebut the defense expert’s testimony and it “was

merely cumulative of evidence that had already been presented[.]” Armstrong v.

Gynecology & Obstetrics of DeKalb, 327 Ga. App. 737, 743 (3) (761 SE2d 133)

(2014).

                                          11
      5. Defense expert’s testimony about stroke.

      The appellants contend that the trial court erred in allowing the defense expert

to give speculative testimony that a spinal stroke was a possible cause of the CES.

But the cases upon which they rely for this argument “are inapplicable here because

they address only the admissibility of the testimony of [a] plaintiff’s expert witnesses,

i.e., what those witnesses must show in order to meet the plaintiff’s burden of

proving, as part of [the] case-in-chief, that the defendant’s negligence caused [the]

injuries.” Yang v. Smith, 316 Ga. App. 458, 465 (1) (b) (728 SE2d 794) (2012). “This

contention confuses plaintiffs’ burden of proof with the defendant’s burden to

establish the reliability and relevance of proposed expert testimony.” Goodrich v.

John Crane Inc., 2018 U.S. Dist. LEXIS 168355 *25 (1) (E.D. Va. 2018).

“Defendants . . . do not bear the burden of proving causation. . . . [D]efendants may

instead provide expert testimony suggesting alternative causes for the plaintiff’s

injury in order to rebut the plaintiff’s specific causation testimony.” Collins v.

Ethicon, Inc., 2017 U.S. Dist. LEXIS 204752 *5 (II) (S.D. W.Va. 2017) (citations and

punctuation omitted). In this case, the appellants have failed to show that the trial

court erred in allowing the defense expert’s testimony suggesting an alternative cause

for the CES.

                                           12
      6. Excluded deposition testimony.

      The Haskinses claim that the trial court erred in not allowing them to use the

deposition of a physiatrist who treated Michael Haskins after his surgery. OCGA §

9-11-32 (a) (3) provides that a party may use the deposition of a witness, whether or

not a party, for any purpose if the court finds the witness is unavailable in certain

circumstances. “The decision as to whether to allow the use of deposition testimony

lies squarely within the sound discretion of the trial court.” LN West Paces Ferry

Associates v. McDonald, 306 Ga. App. 641, 648 (2) (b) (703 SE2d 85) (2010). Even

assuming an abuse of discretion in this case, it was harmless since the witness did not

give testimony regarding causation or liability, and instead testified about the nature

and extent of the injuries treated. As the witness deposed, she was certified in

physical rehabilitation, was not licensed to perform surgery, had no opinion about

what was done during Haskins’ surgery, had no criticism of the providers who had

treated Haskins before his arrival at the spinal center, and had no opinion about what

caused the CES.

      The appellants argue that a portion of the deposition testimony contradicted the

trial evidence that Haskins was able to move his feet in the operating room after the

discectomy, but then could not move them later in the recovery room. The deponent,

                                          13
however, had no personal knowledge of, and gave no testimony about, what occurred

in the operating room or the recovery room. Rather, the portion of the deposition cited

by appellants was merely the witness reading a spinal center admission record which

said, as part of the patient’s history, that the patient had experienced weakness and

loss of bowel and bladder function immediately following surgery. But the witness

had no knowledge about precisely when after surgery the CES symptoms first

appeared; and she did not testify, let alone refute, the evidence that Haskins had been

able to move his feet in the operating room after surgery.

      As noted above, the witness offered no opinions about the surgery or what

caused the CES, and instead was deposed about damages issues related to the extent

and treatment of the injuries. Given the defense verdict finding no liability, there is

no reasonable probability that exclusion of such deposition testimony contributed to

the verdict since the issue of damages was not even reached. Moreover, the

deposition would have been cumulative of other evidence offered at trial regarding

the injuries and treatment. Under these circumstances, exclusion of the deposition

was harmless.

      7. Prejudicial statements.



                                          14
      While cross-examining Haskins about his testimony concerning things he could

not do on his farm since the surgery, defense counsel asked, “And sometimes when

you don’t have help on the farm on the weekends, you have to go to, as you put it, to

the black quarters to find some help, true?” The Haskinses’ objected and moved for

a mistrial on grounds that the question was irrelevant and prejudicial. Defense

counsel argued that it was a proper cross-examination question concerning a

statement Haskins had made during his deposition. The trial judge ordered defense

counsel to move forward and not mention race, and defense counsel asked no further

questions about the matter.

      Citing OCGA § 9-10-185, the Haskinses contend that the trial court erred in

failing to take further corrective action beyond directing counsel to move on from the

question. That code section provides:

      Where counsel in the hearing of the jury make statements of prejudicial
      matters which are not in evidence, it is the duty of the court to interpose
      and prevent the same. On objection made, the court shall also rebuke
      counsel and by all needful and proper instructions to the jury endeavor
      to remove the improper impression from their minds. In its discretion,
      the court may order a mistrial if the plaintiff’s attorney is the offender.

OCGA § 9-10-185. Here, “it [is] highly probable that the alleged error [in not taking

further corrective action concerning the single unanswered question] did not


                                          15
contribute to the judgment.” Davis v. Glaze, 182 Ga. App. 18, 20 (2) (354 SE2d 845)

(1987) (citation and punctuation omitted). Compare Sangster v. Dujinski, 264 Ga.

App. 213, 214, 217 (590 SE2d 202) (2003) (plaintiff’s attorney improperly claimed

that defendant’s wife had battered wife syndrome and repeatedly discussed facts not

in evidence concerning defendant’s prior criminal matters). With regard to a mistrial,

the trial court was “vested with broad discretion, and this [c]ourt will not disturb the

ruling absent a manifest abuse of discretion. In reviewing the trial court’s refusal to

grant a mistrial, we consider whether the remarks affected or infected the verdict, and

whether it is apparent that a mistrial [was] essential to the preservation of the right to

a fair trial.” Georgia Dept. of Corrections v. Crouch, 312 Ga. App. 544, 548 (2) (718

SE2d 875) (2011) (citations and punctuation omitted). As it is not apparent that a

mistrial was essential to preserve a fair trial, we find no abuse of discretion.

      The appellants’ further argument concerning a purported prejudicial statement

about Dr. Rowe during defense counsel’s closing argument provides no basis for a

new trial since no such objection was made at trial. See Doherty v. Brown, 339 Ga.

App. 567, 578 (5) (794 SE2d 217) (2016) (“To preserve a point of error for the

consideration of an appellate court, counsel must take exception to the alleged error

at the earliest possible opportunity in the progress of the case by a proper objection

                                           16
made a part of the record.”) (citation, punctuation, and emphasis omitted); Womack

v. Johnson, 328 Ga. App. 543, 544-546 (1) (762 SE2d 428) (2014) (failure to make

contemporaneous objection to allegedly improper remarks of counsel waived right

to complain about remarks on appeal).

      8. Testimony of physician assistants.

      The Haskinses contend that the trial court erred in allowing two physician

assistants to testify about the care that neurosurgeons typically employ and that Dr.

Rowe is a good doctor. Their contentions, however, misstate the testimony given by

the two witnesses, who were the physician assistants during the two surgeries

performed by Dr. Rowe in this case. A review of their testimony reveals that they did

not give improper opinion testimony about the typical standard of care by

neurosurgeons and instead testified as fact witnesses about their personal experiences

and observations working with Dr. Rowe and on the surgeries in this case. See Glover

v. Atkinson-Sneed, 348 Ga. App. 679, 688 (1) (a) n. 6 (824 SE2d 588) (2019) (doctor

allowed to testify as a fact witness); Jim Tidwell Ford, Inc. v. Bashuk, 335 Ga. App.

668, 671-672 (1) (782 SE2d 721) (2016) (witness may testify about observations

based on personal knowledge, including the treatment of a party). Appellants have

shown no reversible error in the testimony of the physician assistants.

                                         17
      9. Deposition.

      During the trial, the deposition of one of the physician assistants discussed

above was taken for use at trial because the witness lived out of state and was

unavailable to testify in person. At the end of her deposition, the witness waived her

right to read and sign the deposition in order to expedite preparation of the deposition

transcript for use at the ongoing trial. Counsel for the Haskinses nevertheless

requested that the witness read and sign her deposition. Defense counsel sought to

obtain her signature before introducing the deposition at trial, but was unable to do

so, and asked to be allowed to perfect the record upon obtaining the signature. The

trial court allowed the deposition to be introduced at trial, ordering that the witness

signature be made part of the record when completed. Three days after trial, defense

counsel filed a notice indicating that the certified, signed deposition transcript had

been filed. And the record contains what appears to be a certified original deposition

transcript.

      The Haskinses argue that the trial court erred in allowing the use of the

unsigned, uncertified deposition at trial. See OCGA § 9-11-30 (e). We note that they

have not identified any portion of the deposition that was used at trial as having been

inaccurately transcribed or in need of correction. As previously explained, we review

                                          18
a decision to allow the use of deposition testimony for an abuse of discretion. LN

West Paces Ferry Associates, supra.

             In Spector v. Lankford, 151 Ga. App. 397, 398 (2) (259 SE2d 654)
      (1979), we held that the admission of a deposition at trial was proper,
      although it had not been made available to the witness for examination
      and signature. Spector . . . involved a unique situation where the
      deposition in question was taken after the court adjourned for the first
      day of trial[, and for the express purpose of use at trial,] because the
      witness had an out-of-state business commitment that prevented him
      from attending trial the next day, and the parties were well aware that by
      the time the transcript was prepared the witness would be unavailable to
      sign it.

Steed v. Federal National Mortgage Corp., 301 Ga. App. 801, 808 (1) (c) n. 7 (689

SE2d 843) (2009) (citation and punctuation omitted). As this court explained in

Spector:

      Since the appellant made no demand for the witness’ signature until it
      was clear that compliance with the demand would be impossible and
      since there is no contention or indication that any of the testimony in the
      deposition was improperly transcribed, we hold that the trial court acted
      within its discretion in allowing the deposition to be used as evidence.

Spector, supra.

      Likewise, in the instant case, the deposition was taken after the trial had

already begun, it was taken for the express purpose of use at trial because the witness

lived out of state and was unavailable to testify in person, her signature could not be


                                          19
obtained prior to its use at trial, and there is no contention or indication that any

testimony in the deposition was improperly transcribed. Moreover, it appears that a

certified deposition transcript was later filed. Under these circumstances, we find no

abuse of discretion by the trial court. Compare Steed, supra at 808 (1) (c) (court erred

in admitting plaintiff’s deposition for purposes of summary judgment where she had

not been notified that deposition was available for her examination and signature).

      Judgment affirmed. Doyle, P. J., and Hodges, J., concur.




                                          20
