SUSAN MCWHIRTER v. NICHOLAS CLINKSCALES

                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                             HODGES and PIPKIN, JJ.

                    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



                                                                  September 29, 2025




In the Court of Appeals of Georgia
 A25A0766. MCWHIRTER et al. v. CLINKSCALES et al.

      MCFADDEN, Presiding Judge.

      On November 19, 2014, 15-month-old Alex Clinkscales died after a button

battery eroded through his esophagus. His parents, individually and as the

administrators of his estate, brought this medical malpractice action against the boy’s

pediatrician, Dr. Susan McWhirter, and her pediatric practice, Rivertown Pediatrics,

P. C., alleging that Dr. McWhirter was negligent for failing to consider the possibility

that Alex had ingested a foreign object when she examined him on November 6, 2014.

      A jury trial resulted in a plaintiffs’ verdict, on which the trial court entered final

judgment. On appeal, the defendants argue that the trial court erred by admitting the

testimony of one of the parents’ expert witnesses, but we find no abuse of discretion
in the trial court’s decision to allow the jury to hear and assess that testimony. The

defendants argue that the trial court erred in denying their motion for a new trial on

the general grounds, but they have not overcome the presumption that the trial court

properly exercised his discretion in that regard. And the defendants argue that the trial

court erred by failing to apply a statutory cap on noneconomic wrongful death

damages, but we cannot consider their sole appellate argument, which which concerns

whether or not the statute imposing the cap is constitutional, because it is not apparent

that the trial court ruled on its constitutionality.

      Because we find no merit in any of these claims of error, we affirm.1

      1. Facts and procedural history

      Viewed in the light most favorable to the verdict, the trial evidence showed that

on November 1, 2014, Alex began vomiting, stopped eating, and showed signs that it

was hard for him to swallow. He was whiny and irritable. His parents sought medical

help from urgent care and received a prescription for antibiotics and instructions to

follow up with Alex’s pediatrician.

      1
       Oral argument was held in this case on April 10, 2025, and is archived on the
court’s website. See Court of Appeals of Georgia, Oral Argument, Case No.
A25A0766 (April 10, 2025), available at https://vimeo.com/1075661853/.


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      Some of Alex’s symptoms persisted and on November 3, 2014, he had a black

stool. The next day his parents took him to Rivertown Pediatrics for evaluation. Alex

was diagnosed with a viral infection and his parents were instructed to discontinue the

antibiotics and return for a previously scheduled well-child visit with Dr. McWhirter

two days later, on November 6.

      Alex continued to show symptoms; he was whiny, he would not eat much, and

it was hard for him to swallow. At the November 6 well-child visit, the parents

described those symptoms to Dr. McWhirter. Dr. McWhirter diagnosed Alex with an

upper respiratory infection, prescribed another antibiotic for him, and instructed the

parents to give him a nutritional supplement and return for reevaluation later in the

month. She did not suspect that Alex had swallowed a foreign object and did not order

a chest X-ray at the November 6 visit.

      Alex’s symptoms did not worsen after the November 6, 2014 visit, but he

remained irritable and continued to show a lack of appetite and trouble swallowing

over the next two weeks. On November 18, 2014, Alex initially seemed to be feeling

slightly better. But that evening he suddenly made a “weird squeal” and began

bleeding from the nose and mouth. Alex was taken to the hospital where he died, early


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the next morning, of hemorrhage and cardiac arrest. A button battery had eroded

through his esophagus and into a major vein.

      The parents argued that Dr. McWhirter breached the standard of care by failing

to consider the possibility that Alex had swallowed a foreign object when she saw him

on November 6, 2014, and by failing to order a chest X-ray to rule out that possibility.

They presented testimony from a pediatric emergency medicine physician who

testified that, given Alex’s symptoms, the applicable standard of care required Dr.

McWhirter to do those things.

      The parties presented competing expert witnesses on whether the battery was

in Alex’s esophagus on November 6, 2014, when Dr. McWhirter saw him. The

defendants’ expert, pediatric ear-nose-and-throat doctor Ian Jacobs, opined that Alex

most likely had swallowed the battery one or two days before his death on November

19. The parents’ expert, radiologist David Owens, opined that Alex most likely had

swallowed a battery that had a low charge on November 1, the day his symptoms

began.

      Both Dr. Jacobs and Dr. Owens agreed that the level of charge in the battery

would have affected the rate at which it eroded the child’s esophagus. No autopsy was


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conducted on Alex, so the battery was not recovered and therefore its actual charge

level was not known.

      The jury returned a plaintiffs’ verdict of $2,000,000 to Alex’s estate for pain

and suffering and $2,000,000 to his parents for the value of his life.

      2. Evidentiary ruling

      Before trial, the defendants moved to exclude Dr. Owens’s opinion on how long

the battery had been in Alex’s body. Among other things, they argued that the opinion

was unreliable because it rested on speculation about the battery’s level of charge. The

trial court denied that motion and allowed Dr. Owens to testify to his opinion at trial.

The defendants assert that the trial court abused his discretion in this way.

      OCGA § 24-7-702 (“Rule 702”) governs the admissibility of expert testimony.

It provides:

      A witness who is qualified as an expert by knowledge, skill, experience,
      training, or education may testify in the form of an opinion or otherwise,
      if: (1) The expert’s scientific, technical, or other specialized knowledge
      will help the trier of fact to understand the evidence or to determine a
      fact in issue; (2) The testimony is based upon sufficient facts or data; (3)
      The testimony is the product of reliable principles and methods; and (4)
      The expert has reliably applied the principles and methods to the facts
      of the case.

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OCGA § 24-7-702 (b).

       “Under OCGA § 24-7-702, it is the role of the trial court to act as a gatekeeper

of expert testimony.” Yugueros v. Robles, 300 Ga. 58, 67 (793 SE2d 42) (2016). To

discharge that responsibility, the “trial court must assess three aspects of proposed

expert testimony — the qualifications of the expert, the reliability of the testimony,

and the relevance of the testimony. . . .” Arnold v. Fairway Mgmt., 376 Ga. App. 34,

39 (1) (918 SE2d 56) (2025) (citation and punctuation omitted). “We give broad

deference to the trial court to fulfill this gatekeeper role. . . . We will not disturb the

trial court’s determination absent a manifest abuse of discretion.” Emory Univ. v.

Willcox, 355 Ga. App. 542, 544 (1) (844 SE2d 889) (2020) (citation and punctuation

omitted).

       This appeal concerns only whether Dr. Owens’s expert testimony was reliable.2

Reliability is a flexible, case-specific inquiry, Miller v. Golden Peanut Co., 317 Ga. 22,

30 (2) (891 SE2d 776) (2023), and a trial court has “considerable leeway in deciding

how to assess the reliability of [an expert witness’s] opinion.” Emory Univ., 355 Ga.

App. at 545 (2). In doing so, the court must focus on the expert’s “principles and

       2
        Below, the defendants also challenged Dr. Owens’s qualifications, but they do
not assert that argument on appeal.
                                            6
methodology, not on the conclusions that they generate.” Daubert v. Merrell Dow

Pharms., 509 U. S. 579, 595 (II) (C) (113 SCt 2786, 125 LE2d 469) (1993). Accord

Johnson v. Terminal Inv. Corp., 374 Ga. App. 629, 634 (1) (913 SE2d 14) (2025).

      At trial, Dr. Owens testified that he is a radiologist whose day-to-day practice

involves drawing conclusions about a patient’s condition by reviewing radiology

images, using information about the patient’s medical history to inform those

conclusions. He testified that he employed this method to reach his conclusion that,

to a reasonable degree of medical certainty, Alex swallowed the button battery on

November 1, 2014.

      Specifically, Dr. Owens explained that Alex’s radiology images showed a button

battery lodged in his esophagus; that his medical history showed he had experienced

symptoms consistent with swallowing a foreign object on November 1, such as

vomiting and trouble swallowing, some of which persisted until his death; and that

nothing in the medical records or depositions showed that Alex exhibited symptoms

of severe pain shortly before his death. Dr. Owens testified that from his review of

literature and his general understanding of the effects of batteries on the body, in his

opinion a fully charged battery would erode through a child’s esophagus very quickly


                                           7
after it was swallowed, causing the child severe pain in the process, while a battery

with little to no charge would erode through the esophagus more slowly, potentially

over “an extended number of days.” The defendants’ expert witness, Dr. Jacobs, did

not disagree with this conclusion, testifying that a partially charged battery could take

weeks to months before it caused damage to a child’s esophagus.

      Dr. Owens also opined that although no one could know with certainty the

charge level of the battery in this case, given the timeline of Alex’s symptoms and

information obtained from the radiology image it was more likely that the battery had

little or no charge and that Alex had swallowed it around the time his symptoms first

appeared, on November 1.

      The defendants argue that Dr. Owens’s opinion is not reliable because he

speculated that the button battery that Alex swallowed had little or no charge. But

“the appropriate standard for assessing the admissibility of the opinion of an expert

is not whether it is speculative or conjectural to some degree, but whether it is wholly

so.” Johnson, 374 Ga. App. at 635 (1) (citation and punctuation omitted). A wholly

speculative expert opinion is not admissible under Rule 702. Swint v. Mae, 340 Ga.

App. 480, 485 (2) (798 SE2d 23) (2017). However, “when an expert’s opinion is


                                           8
based partially on speculation, this goes to the weight of the testimony rather than its

admissibility.” Johnson, supra (citation and punctuation omitted).

      Dr. Owens’s opinion is not wholly speculative. He drew conclusions based on

the timing of Alex’s symptoms as shown in the child’s medical history and other

evidence of record, his understanding from research of how batteries interact with the

body when swallowed, and his experience as a doctor who considers radiology images

in conjunction with medical histories as part of his regular practice. Compare Fields

v. Taylor, 340 Ga. App. 706, 713 (2) (b) (797 SE2d 127) (2017) (affirming trial court’s

ruling allowing a doctor to give an opinion on the most likely cause of a patient’s death

based on the doctor’s review of relevant medical records and other evidence regarding

the death and the “utiliz[ation of] his expertise to draw a conclusion” from that

information) with Nat’l Emergency Med. Servs. v. Smith, 368 Ga. App. 18, 28 (1) (b)

(889 SE2d 162) (2023) (reversing trial court’s ruling allowing an expert to give

opinion testimony criticizing training policies and procedures that the expert had not

seen) and Cash v. LG Elecs., 342 Ga. App. 735, 740 (1) (b) (804 SE2d 713) (2017)

(affirming trial court’s ruling excluding an expert’s opinion where the expert had

created his own methodology, which had not been peer-reviewed or otherwise


                                           9
obtained approval within the scientific community, the expert could not name a

publication that purportedly had published an article on the methodology, and the

methodology included unrealistic manipulations).

      The trial court was within his discretion to allow the jury to hear Dr. Owens’s

testimony. “[A] trial court’s gatekeeper role . . . is not intended to supplant the

adversary system or the role of the jury. Quite the contrary, vigorous cross-

examination, presentation of contrary evidence, and careful instruction on the burden

of proof are the traditional and appropriate means of attacking shaky but admissible

evidence.” Preferred Women’s Healthcare v. Sain, 367 Ga. App. 821, 827 (1) (888 SE2d

599) (2023) (citation and punctuation omitted). “Even if, as the defendants contend,

the expert’s opinion was based upon inadequate knowledge, this does not mandate the

exclusion of the opinion but, rather, presents a jury question as to the weight which

should be assigned the opinion.” Emory Univ., 355 Ga. App. at 545 (2) (citation and

punctuation omitted). So we find no error.

      3. Motion for new trial on the general grounds

      The defendants argue that the trial court erred by failing to exercise the

required discretion in denying their motion for new trial on the general grounds. In


                                          10
that motion, they argued that the jury verdict was decidedly and strongly against the

weight of the evidence. The trial court denied the motion in a one-line order that

contained no analysis. We find no error.

       OCGA § 5-5-21 permits the presiding judge, in his or her discretion, to grant

a new trial where the verdict is “decidedly and strongly against the weight of the

evidence.” This is one of the so-called “general grounds” for a new trial and,

“[w]hen properly raised in a timely motion, . . . require[s] the trial court to exercise

a broad discretion to sit as a ‘thirteenth juror.’” White v. State, 293 Ga. 523, 524 (2)

(753 SE2d 115) (2013) (citation and punctuation omitted). The trial court’s discretion

in this regard is substantial, but if the court fails to properly exercise that discretion

(by, for example, applying the wrong standard in deciding the motion for new trial),

we will vacate the order on the motion for new trial and remand for a proper exercise

of discretion. Id. at 524-525 (2).

       The defendants argue that we must vacate the new-trial order in this case

because it was a one-line order that did not refer to the general grounds or explain the

trial court’s ruling. But a trial court is not required to make any express findings of fact

or conclusions of law in an order denying a motion for new trial on the general


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grounds, or even explicitly refer to its discretion. See Wilson v. State, 302 Ga. 106,

108-109 (II) (a) (b) (805 SE2d 98) (2017). While our Supreme Court has held that it

must be “clear that the trial court applied the correct legal standard and exercised its

discretion” in ruling on a motion for new trial on the general grounds, State v. Denson,

306 Ga. 795, 799 (2) (a) (833 SE2d 510) (2019), the Court has also held that “unless

the record shows otherwise, we must presume that the trial court understood the

nature of its discretion and exercised it. [We] will thus presume, in the absence of

affirmative evidence to the contrary, that the trial court did properly exercise such

discretion.” Wilson, 302 Ga. at 108 (II) (a) (citation and punctuation omitted). See

Price v. State, 305 Ga. 608, 613 (3) (825 SE2d 178) (2019) (“when a trial court enters

an order denying a motion for new trial and, without more, recites that the new trial

is refused or denied, this will be taken to mean that the judge has in the exercise of his

discretion approved the verdict”) (citation and punctuation omitted); Dunlap v. State,

351 Ga. App. 685, 687 (2) (832 SE2d 667) (2019) (applying the presumption that the

trial judge properly exercised his discretion to affirm a one-line order denying a

motion for new trial on the general grounds).




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      The defendants have not pointed to any affirmative evidence showing that the

trial court failed to properly exercise his discretion. They merely argue that we should

assume the trial court used the wrong standard in ruling on the new-trial motion

because the parents argued an incorrect legal standard in opposing it. But in support

of this argument the defendants cite cases that do not stand for the proposition that

evidence of a party’s erroneous argument to a court is enough to rebut the

presumption that the court properly exercised its discretion. Instead, in those cases

the trial court’s order itself indicated an improper exercise of discretion. See Holmes

v. State, 306 Ga. 524, 527-528 (2) (832 SE2d 392) (2019) (involving a trial court order

that referred to the standard applicable to reviewing the sufficiency of the evidence but

not the standard applicable to assessing the general grounds); Gresham v. State, 354

Ga. App. 835, 839 (1) (841 SE2d 484) (2020) (involving a lengthy trial court order that

addressed all of the defendant’s motion-for-new trial arguments in significant detail

except his general-grounds argument, implying that the trial court did not perform its

duty to exercise discretion with regard to that argument).

      4. Statutory cap on noneconomic damages




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      After trial, the defendants moved to amend the judgment, arguing that OCGA

§ 51-13-1 required the damages award to be reduced to no more than $350,000. OCGA

§ 51-13-1 imposes limits upon the recovery of noneconomic damages in medical

malpractice actions and defines noneconomic damages to include damages for pain

and suffering. OCGA § 51-13-1 (a) (4).

      The parents asserted several arguments in opposition to the motion to amend

the judgment, including an argument that OCGA § 51-13-1 was unconstitutional and

other arguments that did not concern the statute’s constitutionality. The trial court

denied the motion to amend the judgment in a one-line order that did not specify

which of the parents’ arguments, if any, he found persuasive.

      On appeal, the defendants focus solely on OCGA § 51-13-1’s constitutionality,

in particular the application of Atlanta Oculoplastic Surgery v. Nestlehutt, 286 Ga. 731

(691 SE2d 218) (2010), and Med. Ctr. of Cent. Ga. v. Turner, 372 Ga. App. 644 (905

SE2d 858) (2024),3 which addressed that issue. But we cannot consider that issue

because the trial court did not clearly rule on it. Appellate courts do not “pass upon

      3
        After briefing in this case was completed, our Supreme Court vacated our
decision in Med. Ctr. of Cent. Ga. and directed us to return that case to the trial court
for additional proceedings. Med. Ctr. of Cent. Ga. v. Turner, __ Ga. __ (__ SE2d __)
(Case No. S25G0132, decided June 24, 2025).
                                           14
the constitutionality of an Act of the General Assembly unless it clearly appears in the

record that the point was directly and properly made in the court below and distinctly

passed on by the trial judge.” Nathans v. Diamond, 282 Ga. 804, 807-808 (2) (654

SE2d 121) (2007) (citation and punctuation omitted). The trial court did not distinctly

rule on the constitutionality of OCGA § 51-13-1; in denying the defendants’ motion,

the trial court could have agreed with the parents’ argument that the statute was

unconstitutional as applied to this case, but the trial court also could have agreed with

one of the parents’ other arguments that did not address the statute’s

constitutionality.

         We deem abandoned any challenge the defendants might have to the trial

court’s ruling on those other, nonconstitutional arguments, because they have not

addressed them on appeal through argument or citation of authority. See Court of

Appeals Rules 25 (d) (1); Lee v. Deutsche Bank Nat’l Trust Co., 373 Ga. App. 551, 552

(1) (908 SE2d 268) (2024). Consequently, the defendants have not shown reversible

error.

         Judgment affirmed. Hodges and Pipkin, JJ., concur.




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