                            SECOND DIVISION
                        ANDREWS, P. J., PHIPPS, P. J.
                                 RAY, 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.
                               http://www.gaappeals.us/rules/


                                                                       July 16, 2015




In the Court of Appeals of Georgia
 A15A0568. PIEDMONT NEWNAN HOSPITAL, INC. v. RA-085
     BARBOUR et al.

      RAY, Judge.

      This case presents the interesting issue of whether it is permissible for a trial

court to allow members of a jury to use their sense of touch during a trial to determine

a critical issue of fact, just as they might use their senses of sight and hearing. The

issue arose when plaintiff’s counsel requested and received permission for members

of the jury to briefly touch both of the plaintiff’s hands to determine if there was a

detectable difference in the temperature of each hand, which would be an important

factor in determining whether the plaintiff had Complex Regional Pain Syndrome

(“CRPS”). The plaintiff claimed that his arm was damaged while undergoing a

medical procedure performed at the defendant hospital, causing him to suffer from
CRPS, with one consequence being that his damaged arm was much colder than

normal. The experts who testified on behalf of the parties disagreed as to whether

there was a meaningful difference in temperature of the plaintiff’s hands, even though

they agreed that a temperature asymmetry would be an important factor in

determining whether the plaintiff suffered from CRPS.1


      Under the circumstances of this case, we do not believe that the trial court

abused its discretion in allowing the jurors to touch the plaintiff’s hand to determine

for themselves which of the two experts was correct as to this critical fact, and

possibly, which expert had greater credibility as to his medical diagnosis of whether

the plaintiff did or did not suffer from CRPS. Additionally, we find that the trial court

properly acted within its discretion by issuing its spoliation order regarding evidence

which the defendants admittedly failed to preserve for trial. However, we also find

that evidence as to future lost wages which the plaintiff might suffer was at best

speculative and unsupported. Accordingly, we affirm the judgment in principle part,




      1
        Symptoms of CRPS include skin discoloration, impacted nail or hair growth,
pain disproportionate to the injury, over sensitivity to touch, and temperature
differences in the affected limb.

                                           2
but reverse the judgment as it pertains to the $1,195,957 awarded for future lost

wages.


      On June 1, 2011, Plaintiff-Appellee Michael Barbour arrived at Appellant

Piedmont Newnan Hospital (“Piedmont Newnan”) complaining of chest pains and

difficulty with breathing. He underwent a series of diagnostic tests to assess his heart,

principally a nuclear stress test to compare the blood flow into his heart while he was

both at rest and under stress. This procedure involves injecting a small amount of

nuclear material into the bloodstream to act as a tracer to the heart to facilitate the

taking of a “resting” image of the patient’s heart. Thereafter, the patient then

exercises to increase his heart rate, then receives another injection of the same nuclear

tracer, and then a second image of the “stressed” heart is taken. As to Mr. Barbour,

in each instance the nuclear tracer was introduced through an IV catheter which was

originally placed in his left arm when he first received treatment upon arriving at the

emergency room.


      The “resting” phase of the test went off without any outward indication of a

problem. The nuclear material was introduced into Mr. Barbour’s vein, and Piedmont

Newnan proceeded to take an image of his heart. Thereafter, Mr. Barbour proceeded


                                           3
to the “stress” portion of the test. First, he began walking on a treadmill to induce his

heart to reach the target rate; this took approximately ten minutes. Then, the

radioactive tracer was injected into the catheter in Mr. Barbour’s arm while he

remained on the treadmill. Eventually, however, Mr. Barbour felt a sharp pain and

cried out, leading the nurse to immediately terminate the test as she believed that the

tracer material had infiltrated Mr. Barbour’s arm, meaning that the material was not

contained within his vein and bloodstream, but had leaked into the soft tissue of his

arm. Mr. Barbour’s arm swelled and became discolored, and a bulge appeared near

where the IV port was located. No image of Mr. Barbour’s heart was taken as the

attention of hospital staff shifted to treating his arm. Eventually, Mr. Barbour was

discharged with specific instructions related to his arm.


      The pain in Mr. Barbour’s arm did not subside. He called a nursing hotline four

days after the infiltration complaining that it was worsening, including that his arm

was burning, tingling and swollen. He visited his primary care physician three weeks

later, having much the same complaints, including that the arm was “icy hot.” After

the pain spiked further while playing softball, he sought care from two nearby

emergency rooms, including at Piedmont Newnan. Eventually, neurologist Dr.



                                           4
Knobler diagnosed Mr. Barbour with CRPS, a diagnosis that was later confirmed by

Dr. Andrew Koman, an orthopedic surgeon and expert on CRPS. It was Dr. Koman’s

opinion that the infiltration of the nuclear tracer outside the vein, combined with

blood then escaping the vein, had a damaging impact on the nerve.


       Mr. Barbour underwent a series of medical procedures to address the problems

in his arm. Dr. Koman performed two surgeries on a nerve in Mr. Barbour’s left arm.

Dr. Erik Shaw of the Shepherd’s Clinic, who specializes in CRPS, also provided

treatment to Mr. Barbour. These surgeries and medical treatment were an issue at the

trial, with Piedmont Newnan claiming that they were the source of Mr. Barbour’s

CRPS, if indeed he really had this condition, which Piedmont Newnan did not

concede.


       In May 2012, Mr. Barbour and his wife filed a medical malpractice case against

Piedmont Newnan and one of the nurses involved with his care during the subject

stress test, alleging that they failed to ensure that the IV was correctly installed and

properly functioning prior to the test, thus causing the infiltration of the nuclear tracer




                                            5
in his arm and the development of CRPS.2 The case proceeded to trial on May 5, 2014

and lasted for nine days. Piedmont Newnan denied negligence in its treatment of Mr.

Barbour, denied that he had CRPS, and, to the extent that he did, denied that anything

it did caused the condition, instead placing the blame on the physicians who had later

treated Mr. Barbour.


      The trial developed into the classic “battle of the experts,” with Mr. Barbour’s

expert testifying that he did have CRPS and Piedmont Newnan’s expert claiming

otherwise. First, Piedmont Newnan called Dr. Arnold Weiss to testify that Mr.

Barbour did not have CRPS.3 Dr. Weiss stated as much, even though he admitted that

Mr. Barbour was in chronic pain and that he saw nothing in the medical records to

suggest that he was faking. He also acknowledged that Dr. Komen, one of Mr.

Barbour’s treating physicians, was very qualified and knowledgeable about CRPS.

Importantly, he admitted that, in his practice, he would not confirm or rule out a


      2
       The jury reached a verdict in favor of the nurse, but against Piedmont for
$4,470,903, which included $183,244 for past medical expenses; $790,000 for future
medical expenses; $51,702 for past lost wages; $1,195,957 for future lost wages;
$1,000,000 for past pain and suffering; $500,000 for future pain and suffering; and
$750,000 for Mrs. Barbour’s loss of consortium claim.
      3
        Piedmont called Dr. Weiss as its witness during Mr. Barbour’s case and, thus,
out of order to accomodate his schedule.

                                          6
CRPS diagnosis without examining a patient, even though he was offering testimony

that Mr. Barbour did not have CRPS without having ever examined him.


       Plaintiff’s counsel gave Dr. Weiss that opportunity, asking Dr. Weiss to

examine Mr. Barbour’s arms in the courtroom, doing so in front of the jury for all to

see. As Mr. Barbour outstretched both arms and hands, Dr. Weiss stated that he did

not see evidence of skin changes, that the coloring appeared pink on both arms, and

that the pattern of hair growth was the same. When asked whether he felt a

temperature difference from one hand to the other, Dr. Weiss seemingly hedged his

opinion, first stating that they were “roughly the same,” but then acknowledging that

the left “is a little cooler.”


       Mr. Barbour later called Dr. Shaw to testify. Given the same opportunity to

examine Mr. Barbour before the jury, Dr. Shaw pointed out both the discoloration and

waxy appearance of Mr. Barbour’s injured arm, as well the differing levels of hair

growth in the arms. Then, touching each of Mr. Barbour’s hands, Dr. Shaw testified

that his left hand is “very cool compared to the right arm.” In response to a question

as to whether the temperature difference was noticeable, he stated “generally, you’ll

be able to feel it. . . . You’ll generally be able to detect it with human touch. It has to


                                            7
be greater than one or two degrees difference. . . . It’s pretty easy to detect, so it’s got

to be greater than one to two degrees.”


       Based upon Dr. Shaw’s testimony that there was a clear temperature asymmetry

between the left and right arms and that it was relatively easy to detect, Mr. Barbour’s

counsel requested permission from the court to allow the jurors to feel Mr. Barbour’s

hands for themselves. Piedmont Newnan objected, stating that “this is so relevant to

being incredibly prejudicial.” The trial court overruled the objection, allowing any

jurors who wished to touch Mr. Barbour’s hands to do so. Several jurors did.


       1. On appeal, Piedmont Newnan claims that the trial court abused its discretion

in permitting jurors to touch Mr. Barbour’s hands, arguing that it impermissibly

allowed them to make a medical diagnosis, that it made them witnesses who could not

be cross-examined, that the exercise had no probative value, and that such a practice

has been rejected by other courts around the country. While we recognize that there

are some jurisdictions that would seemingly frown on the request that was granted

here, such opinion is by no means universal, as other jurisdictions have allowed jurors

to touch a plaintiff in appropriate circumstances. Indeed, although we find no Georgia

case directly on point, our own precedent indicates that jurors may utilize all their


                                             8
senses, not just hearing and eyesight, in determining factual disputes put to them.

Union v. State, 7 Ga. App. 27, 27 (4) (66 SE 24) (1909) (no error if jurors tasted

liquid from jug admitted into evidence in illegal whiskey trial); Morse v. State, 10 Ga.

App. 61, 63 (3) (72 SE 534) (1911) (jurors may utilize all of their senses, including

taste and smell, in determining whether liquid was an intoxicating liquor). We also

reject the argument that allowing the jurors to touch Mr. Barbour’s arms was allowing

them to make a medical diagnosis, but rather find that this exercise merely was a tool

to aid them, as laymen, in deciding a question of fact that was squarely put to them,

that is, whether one arm was colder than the other, and that the information so

gleaned was probative to the issues in the case.




      (a) At the outset, we note that Piedmont Newnan seeks to expand within its

enumerations of error on the actual objection that it lodged at trial. As previously

noted, at trial Piedmont Newnan objected to allowing the jurors to touch Mr.

Barbour’s arms because “[t]his is so relevant to being incredibly prejudicial.”4 This


      4
         “[I]n order to raise on appeal contentions concerning admissibility of
evidence, the specific ground of objection must be made at the time the evidence is
offered, and failure to do so will be considered as a waiver.” (Citation, punctuation,

                                           9
objection is certainly unclear and awkwardly composed, and possibly an error in

transcription, as Piedmont Newnan’s counsel likely said or meant to say that the

request was “irrelevant” rather than “relevant.”


      Pursuant to O.C.G.A. § 24-4-401, relevant evidence is evidence that has “any

tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.”

Clearly, the temperature of Mr. Barbour’s hands was a relevant factor to the experts’

diagnosis of whether he suffered from CRPS; that is undisputed. Perhaps the

objection really went to the fact that Piedmont Newnan contended that it did not

cause any CRPS suffered by Mr. Barbour, but that such condition, if it existed, was

caused by the doctors who subsequently provided treatment to him. Yet, given its

contention that Mr. Barbour did not even have CRPS, it is hardly fair for Piedmont




and footnote omitted.) Clemons v. State, 257 Ga. App. 96, 103 (3) (574 SE2d 535)
(2002).

                                         10
Newnan to argue that it was irrelevant whether at trial one arm was colder than the

other.5


      After touching Mr. Barbour’s hands, it might indeed have been prejudicial to

Piedmont Newnan if the jury believed that its expert was not truthful in his testimony

about a temperature difference. Yet, the facts are the facts, and to exclude evidence

merely because the information would be prejudicial to one side or the other is “an

extraordinary remedy which the courts should invoke sparingly, and the balance

should be struck in favor of admissibility.” (Punctuation and footnote omitted.)

Williams v. State, 328 Ga. App. 876, 879 (1) (763 SE2d 261) (2014).


      (b) Citing to Schaffner v. Chicago & North Western Transp. Co., 129 Ill. 2d 1,

30 (III) (541 NE2d 643) (1989), Piedmont Newnan argues that allowing jurors to

touch Mr. Barbour was prejudicial because it could have the effect of converting the

jurors into witnesses for the party conducting the test and that opposing counsel was




      5
         We note that, interestingly, Piedmont Newnan lodged no objection on the
record to either of the experts touching Mr. Barbour’s hands in the courtroom and
testifying as to their findings, thereby supporting our conclusion that information as
to the current temperature of Mr. Barbour’s hands was, indeed, relevant.

                                         11
unable to cross-examine the jurors on their experience.6 Of course, this presupposes

that the jurors who touched Mr. Barbour’s arms would find a difference in

temperature and disbelieve Piedmont Newnan’s experts. If the temperature

differential was non-existent or negligible, as Dr. Koman so testified, then this might

have been the best evidence in support of Piedmont Newnan’s defense. In any event,

longstanding precedent from this Court flatly rejects the argument that jurors who use

their senses to make determinations of facts are turned into witnesses, immune from

cross examination. In Union, supra, where the defendant was tried for a violation of

Prohibition laws related to the possession of alcohol, the trial court permitted the jury

to take with them to the jury room the jug containing the liquid alleged to be illegal

whiskey. The defendant complained on appeal that some of the jurors might have

tasted the substance, and if so, that he was denied an opportunity to cross-examine

them on their findings and that they may have communicated their conclusions to




       6
         We must note that we are not deciding whether it is permissible for some, but
not all, of the jurors to touch the Plaintiff’s arms. While Piedmont Newnan posed a
rhetorical question in its brief that seemed to implicity challenge the propriety of less
than all jurors participating in the exercise, it cannot be fairly said that it alleged such
as an error. It certainly was not raised as an objection at trial or specifically included
as an enumeration of error on appeal. Accordingly, this issue was waived.

                                            12
others on the jury. Our learned colleagues of 100 years prior were unpersuaded,

stating


       [W]e do not see that [tasting the liquid] would have been different from
       [a juror’s] looking at the wine glass and determining from the peculiarity
       of its fracture . . . that it was a glass. Each is alike a case of identity by
       one of the five senses. In the identification of the glass, it would be by
       that of sight. The identification of the contents of the jug, would be by
       that of taste, or it might be that of smell. . . . The view which a certain
       juror might take of such physical testimony in discussing it with his
       fellow cannot affect its admissibility, and is not to be considered as
       testimony delivered beyond the hearing of the defendant on trial. If that
       were true, the defendant would be entitled to rebut the impression which
       the juror received from his sense of sight, or to prevent him from
       communicating it to fellow jurors, unless he first be sworn as a witness.
Id. at 27 (4).


       In the appeal before us, Piedmont Newnan brings no complaint that jurors were

allowed to look at Mr. Barbour’s arms to see if the left arm was discolored, which as

we know is a potential symptom of CRPS. There is no argument that the jurors should

not have been permitted to use their sense of sight to look for nervousness, fidgeting,

sweating, or other nonverbal indications that a witness might be lying.7 Why, then,


       7
         The jury’s use of sight is such an important tool that normally a witness
cannot express an opinion as to whether a perpetrator depicted on a video of a crime
is the defendant on trial; that determination is generally within the sole province of
the jury. See Carter v. State, 326 Ga. App. 144, 147-149 (3) (756 SE2d 232) (2014).

                                            13
cannot the sense of touch be utilized by the jury in appropriate circumstances, limited

by the exercise of the sound discretion of the trial court, just like the senses of sight,

hearing, and even taste have been so allowed? “It is certainly in the interest of truth

– the supreme object of all legal investigation – to let the jurors, who are the final

arbiters of the question, apply to its solution the most accurate sense they are capable

of applying.” Morse, supra.8


      Piedmont Newnan acknowledges that courts in other jurisdictions have

permitted jurors to touch an injured body part, but argues that such cases were merely

for the jury to determine the extent of an injury, and that in this case the jury was

being asked to make a medical diagnosis. See Grubaugh v. Simon J. Murphy Co., 209

Mich. 551, 561-562 (3) (177 N.W. 217) (1920) (in an action for injuries, it was not

error to permit plaintiff to enter the jury box and allow jurors to feel a lump on his

arm). First, the purposes for which other courts have allowed jurors to touch a



      8
        See Mitchell v. State, 283 Ga. 341, 342 (1) (659 SE2d 356) (2008) (jury was
authorized to use its senses to determine length of the knife blade used in commission
of crime); White v. State, 203 Ga. App. 889, 891 (4) (418 SE2d 149) (1992) (jury
could use their sense of sight and touch to determine that subject knife was a least
three inches in length and, thus, illegal, despite the lack of testimony on this point by
any witness); Jones v. State, 150 Ga. App. 300, 301 (3) (257 SE2d 370) (1979)
(“identification of evidence by any of the five senses is not forbidden”).

                                           14
plaintiff are not as strictly limited as Piedmont Newnan asserts. For example, in

McAndrews v. Leonard, 99 Vt. 512 (134 A. 710, 713-714) (1926), the trial court

allowed the jury to touch the head of a plaintiff to feel whether his skull was fully

healed with new bone as the defendant so argued, or only partially healed with

fibrous tissue instead of bone as the plaintiff contended. The parties’ experts, not

surprisingly, had disagreed. The trial court allowed the jury to touch the skull to aid

them in determining who was correct. See also Sampson v. St. Louis & San Francisco

R. Co., 156 Mo. App. 419 (138 S.W. 98, 99-100) (1911) (affirming trial court’s ruling

allowing jury to touch plaintiff’s arm, when the dispute concerned circulatory issues

and the temperature of the arm); Curry v. American Enka, Inc. 452 F. Supp. 178, 181-

182 (E.D. Tenn 1977) (permission may be granted for jurors who wish to feel a part

of the plaintiff’s body for purposes of resolving some disputed or controverted fact).

Compare Ateser v. Becker, 272 A.D.2d 219, 219 (708 N.Y.S.2d 76) (2000) (trial court

properly refused to allow jurors to touch plaintiff’s legs to feel temperature

differential). Thus, the persuasive authority from other jurisdictions support either

side of the controversy before us.




                                          15
      (c) Finally, Piedmont Newnan contends that the trial court erred by essentially

allowing jurors to make a medical diagnosis. Again, we disagree. The touching of Mr.

Barbour’s arm allowed the jurors to determine two things: (1) whether the left arm

was indeed cooler than the right arm and (2) which expert, Dr. Shaw who testified on

behalf of Mr. Barbour, or Dr. Weiss who testified on behalf of Piedmont Newnan,

was more credible on this point and perhaps more credible overall. Any juror who

touched Mr. Barbour’s arms was permitted to take any information gleaned therefrom

into consideration, along with the balance of the experts’ testimony and other

evidence presented, in determining this issue in the case. Both experts had impressive

credentials; yet, their conclusions were so disparate. Certainly, credibility could play

an important role in the jury’s evaluation and assessment of the value of their

opinions. At the end of the day, whether or not the trial court had allowed the jurors

to touch Mr. Barbour’s arms, the jury had to make the final decision as to whether Mr.

Barbour suffered from CRPS and, if so, whether Piedmont Newnan was responsible.9



      9
       The jury is not some static entity that is required to accumulate and plot the
evidence presented like a scientist or mathematician, allowing the final result to be
determined through regression analysis. Rather, the process of deciding facts and
making decisions by a jury is a dynamic process, as so aptly demonstrated by actor
Henry Fonda in the movie 12 Angry Men.

                                          16
         2. Piedmont Newnan argues that the trial court abused its discretion in applying

spoliation sanctions against it due to Piedmont Newnan’s admitted failure to preserve

the digital images of the “resting” test of Mr. Barbour’s heart despite the written

request from Mr. Barbour’s attorney for his records. Piedmont Newnan argues that

these sanctions were inappropriate because (1) there was no spoliation because these

images were not “necessary” for Mr. Barbour’s case and (2) that the sanctions were

prejudicially overbroad. We are unpersuaded and believe that the trial court acted

within the broad discretion available to it under the facts. See Phillips v. Harmon, ___

Ga. ___, *6-8 (II) (Case Nos. S14G1868, S14G1893, S14G1895, decided June 29,

2015); Wal-Mart Stores, Inc. v. Lee, 290 Ga. App. 541, 545-546 (1) (659 SE2d 905)

(2008). Additionally, it is clear from the record that Piedmont Newnan, while not

agreeing that the trial court’s finding of spoliation was correct and consequently that

any spoliation sanctions should be imposed, did agree that the sanctions fashioned by

the court as a response to the trial court’s finding of spoliation were appropriate,

proportional and bore a rational relationship to missing records of Mr. Barbour’s

heart.




                                            17
      On September 23, 2011, legal counsel for Mr. Barbour wrote to Piedmont

Newnan asking for a complete copy of his medical records, including “[c]opies of any

Radiology Diagnostic CDs or Films[.]” Unquestionably, this request would have

included the images of his heart that were captured by the diagnostic machinery

during the “resting” phase of the test. Further, within six months of the test, Mr.

Barbour alerted Piedmont Newnan that he would pursue legal action against it. Yet,

despite receipt of this request and knowledge that a lawsuit would be forthcoming,

Piedmont Newnan did not preserve and produce these images. These images, which

had remained stored on the imaging device and were never downloaded, were lost

when the hospital moved to a new location and the vendor of the portable medical

imaging device erased the hard drive before moving the machine.


      The importance of these images was hotly debated. Mr. Barbour claimed that

without the images, he was hampered in his effort to discover and establish that the

catheter was not working properly during the “resting” phase of the test. His theory

at trial was that the negligence on the part of Piedmont Newnan may have occurred

either during this first phase, or the “resting” test, and if not, that it occurred during

the second phase, or the active “stress” test. Without the images to show whether the



                                           18
nuclear tracer made it to his heart during the “resting” test, the only objective

evidence was lost and his burden to prove when and under what circumstances the

leakage occurred was made much harder.


       In opposing the spoliation motion, in addition to contending that there was no

pending or contemplated litigation when the images were erased, Piedmont Newnan

argued, as it does here, that the “resting” heart images were not necessary because it

essentially was clear that the infiltration occurred during the “stress” phase of the test.

The nurses and technicians who performed the tests would have testified as such, and

Mr. Barbour did not experience any of the symptoms of the infiltration until the

“stress” portion of the test was underway. Thus, as the argument goes, there was no

reason to preserve the images captured during the “resting” phase.


       One might say that Piedmont Newnan’s argument essentially “begs the

question.” It is true that the testimony of its employees would have supported its

contention that there was no problem during the “resting” phase of the test and,

indeed, the fact that no infiltration to Mr. Barbour was detected during that time also

lends credibility to this claim. However, the images themselves would have been

important proof one way or the other because it would have shown whether the tracer


                                            19
was making its way to Mr. Barbour’s heart. Assuming arguendo that the IV was not

working correctly during the “resting” test, despite the testimony of Piedmont

Newnan’s employees, the images were the only objective way that Mr. Barbour likely

could have proven otherwise. We cannot quarrel with the trial court’s conclusion that

these images should have been preserved.


      As we have previously stated,


      Spoilation refers to the destruction or failure to preserve evidence that
      is necessary to contemplated or pending litigation. And, when key
      evidence has been destroyed, exclusion of evidence or dismissal of a
      case may be warranted. In determining whether such a severe sanction
      is warranted the trial court must consider: (1) whether the defendant was
      prejudiced as a result of the destruction of the evidence; (2) whether the
      prejudice could be cured; (3) the practical importance of the evidence;
      (4) whether the plaintiff acted in good or bad faith; and (5) the potential
      for abuse if expert testimony about the evidence was not excluded.



(Punctuation and footnotes omitted.) Bridgestone/Firestone North American Tire,

LLC v. Campbell, 258 Ga. App. 767, 768-769 (574 SE2d 923) (2002).


      It appears that the trial court thoughtfully applied these factors as embedded

in its order of June 19, 2013, finding that Piedmont Newnan was responsible for

                                          20
spoliation by not acting to preserve the digital images of Mr. Barbour’s heart and

applying its narrowly tailored sanctions.10 In reaching this conclusion, we are mindful

that our standard of review is whether the trial court abused its wide discretion. See

Phillips, supra at *8 (II). This we cannot find.


      3. The nearly $4.5 million verdict in favor of Mr. Barbour included $1,195,957

for future lost wages. Piedmont Newnan appeals the award for future lost wages,

complaining that there was not sufficient evidence to support this claim and that it

was based merely on speculation. We agree.


      Mr. Barbour’s claim for future lost wages was based merely upon his fear that

he would lose the job in which he was employed at the time of the trial. Yet, in

November of 2013, his treating physician released him to work fulltime without any

restrictions at his desk job at Dick’s Sporting Goods. His supervisor testified at trial

that he had met all of his performance targets for his current position and even

described him as “amazing.” While he had missed some work for medical treatments,

he was paid 100 percent of his pay during his sick leave as per company policy; his



      10
        Piedmont Newnan and/or their witnesses were prohibited from testifying or
arguing that the catheter was properly ported in the “resting” phase.

                                          21
supervisor testified that Dick’s Sporting Good’s does not “hold [attendance] against”

employees when absent for medical reasons and that Mr. Barbour is able to meet the

targets and goals of his position when he is at work.


      The law in Georgia is that future lost wages may be recovered only when such

losses are “reasonably certain” and not speculative. See Ike v. Kroger Co., 248 Ga.

App. 531, 533 (6) (546 SE2d 903) (2001) (trial court correctly refused to instruct the

jury on future lost wages where the plaintiff, who was working, had not shown “either

that she had a permanent injury or that she would be entitled to lost wages for any

particular period”). There must be evidence from which the jury can estimate or

reasonably infer the loss or decrease in earning capacity, and a claim for future lost

wages cannot be based upon pure conjecture or speculation. See Jones v. O’Day, 303

Ga. App. 159, 161-162 (692 SE2d 774) (2010). While there was ample evidence at

trial that Mr. Barbour’s injury was permanent, the same cannot be said that he would

suffer lost wages in the future, particularly considering the glowing reviews of his job

performance, his good standing with his supervisor, his employer’s policy of

accommodating workers with health issues, and the fact that he receives full pay

when he must miss work for medical treatment.



                                          22
      The trial court should have granted Piedmont Newnan’s motion for directed

verdict as to future lost wages. Accordingly, we hereby reverse that award.


      Judgment affirmed in part and reversed in part. Phipps, P. J., concurs,

Andrews, P. J., concurs in judgment only to Divisions 1 and 2 and concurs fully

otherwise.




                                        23
