- Court
- Court of Appeals of Georgia
- Year
- 2025
- Case
- McWhirter v. Clinkscales
- Citation
- 377 Ga. App. 826; 921 S.E.2d 472
- Decided
- September 29, 2025
An expert opinion is inadmissible only when it is wholly speculative. The radiologist's opinion about when the child swallowed the button battery was admissible because it relied on medical records, symptom timing, radiology images, and literature on battery effects, even though the battery's exact charge level was unknown.
Summary
The Court of Appeals of Georgia affirmed a $4 million medical-malpractice verdict in McWhirter v. Clinkscales. The case arose from the death of a 15-month-old child who swallowed a button battery.
The defendants challenged the admission of expert testimony, the denial of a motion for new trial, and the trial court’s refusal to reduce the judgment under Georgia’s noneconomic damages cap. The Court of Appeals affirmed.
Issues Decided
Expert testimony on battery-ingestion timing
Decision
The court held that the radiologist’s opinion was admissible under OCGA 24-7-702. Uncertainty about the battery’s actual charge level went to the weight of the testimony, not admissibility.
Facts
The child began showing symptoms of vomiting, difficulty swallowing, and irritability on November 1, 2014. On November 6, a pediatrician examined him and diagnosed an upper respiratory infection without considering foreign-object ingestion or ordering a chest X-ray. He died on November 19 after a button battery eroded through his esophagus into a major vein.
The plaintiffs’ radiology expert testified that the child most likely swallowed a low-charge battery on the day symptoms began. He relied on the symptom timeline, medical records, radiology images, and research on how battery charge affects tissue injury. No autopsy was performed, so the battery’s exact charge level was unknown.
Reasoning
The court distinguished wholly speculative opinions from opinions that contain some uncertain premise but rest on evidence and professional methodology. The expert used radiology images together with medical history, which was his ordinary professional approach. Because the opinion was grounded in concrete facts and literature, the jury could weigh the uncertainty rather than having the opinion excluded.
Motion for new trial
Decision
The court affirmed the denial of the defendants’ motion for new trial on the general grounds.
Facts
After the verdict, the defendants moved for a new trial, arguing that the verdict was strongly against the weight of the evidence. The trial court denied the motion in a one-line order.
Reasoning
A trial court is not required to make express findings when denying a new-trial motion on the general grounds. Absent affirmative evidence to the contrary, the appellate court presumes that the trial judge exercised the required discretion.
Noneconomic damages cap
Decision
The court declined to consider the constitutional issue surrounding OCGA 51-13-1 because the trial court had not distinctly ruled on constitutionality.
Facts
The defendants moved to reduce the judgment under Georgia’s noneconomic damages cap. The plaintiffs opposed on constitutional and nonconstitutional grounds. The trial court denied the motion in a one-line order.
Reasoning
Because the trial court did not distinctly decide the constitutional question, and because the defendants did not address the possible nonconstitutional grounds on appeal, the Court of Appeals did not reach the constitutional challenge.
Commentary
The expert-testimony ruling is the center of the opinion. Medical causation often has an unknown variable. Here, the unknown variable was battery charge level. The Court of Appeals treated that uncertainty as a jury-weight problem because the expert still had medical records, imaging, symptom timing, and literature supporting the opinion.
The new-trial ruling is also a reminder about appellate posture. A one-line denial of a general-grounds motion will usually be presumed valid unless the trial court’s order or record affirmatively shows that the judge used the wrong standard.
