JOHN JOHNSON v. CHRISTOPHER B. EVERETT

FOURTH DIVISION
MCFADDEN, P. J.,
WATKINS and PADGETT, 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

May 20, 2026

In the Court of Appeals of Georgia
A26A0099. JOHNSON v. EVERETT et al.

MCFADDEN, Presiding Judge.

John Johnson brought this medical malpractice action against University

Surgical Associates of Athens, PC, and one of its doctors, Christopher B. Everett.

After a jury trial, the trial court entered judgment on the verdict in favor of the

defendants and denied Johnson’s motion for new trial. On appeal, Johnson argues that

he should be given a new trial because the trial court improperly allowed the jury to

consider the issue of gross negligence under the emergency medical care statute,

OCGA § 51-1-29.5, although the parties had not listed that issue in their joint pretrial

order. The record shows that the trial court believed he was required to allow the jury

to consider the issue, when in fact the trial court had the discretion to disallow it, so
we vacate the ruling denying the motion for new trial and remand for the trial court

to exercise his discretion in the first instance.

Johnson also challenges the trial court’s decisions to allow opinion testimony

from the defendants’ expert witness and to admit into evidence a complaint filed in

a different case. We address these claims because they are likely to recur after remand,

but we find no ground for reversal.1

1. Background

We begin by noting that Johnson did not ask for the entire record to be sent to

us on appeal. As a result, the appellate record does not include most of testimony and

evidence presented to the jury.

For this reason, we cannot articulate the underlying facts of this case in the

normal way. Instead we will use the allegations of Johnson’s complaint to provide a

context for understanding the issues on appeal, recognizing that those alleged facts

may or may not have been supported by evidence at trial.

1
Oral argument was held in this case on December 16, 2025, and is archived on
the court’s website. See Court of Appeals of Georgia, Oral Argument, Case No.
A26A0099 (Dec. 16, 2025), available at https://vimeo.com/1148064901?fl=tl&fe=ec.
2
Johnson brought this action for medical malpractice against Everett and the

medical practice that employed him. Johnson alleged that Everett, a vascular surgeon,

was on call on Friday, January 27, 2017, when Johnson went to the emergency room

at St. Mary’s Hospital with symptoms associated with arterial blockage in his left leg.

Everett recommended that Johnson return home and follow up with another doctor

in the University Surgical Associates practice the following Monday.

Johnson alleged that his symptoms worsened and he returned to the St. Mary’s

emergency room the next day, Saturday, January 28, 2017. Everett, who was still on

call with St. Mary’s, was at a different hospital at the time. He recommended that

Johnson either be transferred to that other hospital, Athens Regional Medical Center,

or wait for his Monday appointment. Johnson chose to be transferred.

Johnson alleged that he underwent testing at Athens Regional, and the next day

Everett performed surgery on his leg. Johnson alleged that he now suffers from

numbness in his left leg and foot and a permanent left foot drop, which he attributes

to Everett’s purported negligence in failing to timely evaluate and treat his symptoms

when he went to the hospital on Friday, January 27.

2. Consideration of an issue omitted from the pretrial order

3
Johnson argues that the trial court erred by permitting the jury to consider an

issue omitted from the pretrial order, the applicability of OCGA § 51-1-29.5. That

statute, in certain situations, imposes a gross negligence standard in actions “involving

a health care liability claim arising out of the provision of emergency medical care[,]”

OCGA § 51-1-29.5(c). The statute defines “[e]mergency medical care” as

bona fide emergency services provided after the onset of a medical or
traumatic condition manifesting itself by acute symptoms of sufficient
severity, including severe pain, such that the absence of immediate
medical attention could reasonably be expected to result in placing the
patient’s health in serious jeopardy, serious impairment to bodily
functions, or serious dysfunction of any bodily organ or part.

OCGA § 51-1-29.5(a)(5). This definition encompasses “physicians who provide care

from a location other than the emergency room[,]” such as via telemedicine. Wilson

v. Inthachak, 372 Ga. App. 341, 348(1)(a) (904 SE2d 414) (2024).

In denying Johnson’s motion for new trial, which argued this claim of error, the

trial court indicated that it had no choice but to allow the jury to be charged on the

issue. But as detailed below, it was within the trial court’s discretion to preclude the

issue from jury consideration.

4
To begin, we agree with Johnson that the parties’ joint pretrial order did not

raise the issue of the application of OCGA § 51-1-29.5 or its gross negligence standard.

In the pretrial order, the parties listed the “issues for determination by the jury. . . .”

Johnson identified those issues as: “negligence, causation, and damages (including

special damages and general damages).” The defendants identified those issues as:

(1) Whether Defendant Dr. Everett deviated from the appropriate
standard of care under similar conditions and like surrounding
circumstances; (2) Whether any act or omission on the part of Defendant
Dr. Everett resulted in any harm to Plaintiff; (3) The cause of Mr.
Johnson’s injury; (4) Whether circumstances surrounding Mr.
Johnson’s injury were so remote that the injury sustained was
unforeseeable; (5) To what damages is the Plaintiff entitled, if any; and
(6) If Plaintiff is awarded damages, apportionment of damages according
to the percentages of fault as found by the jury.

Under a section titled “[s]pecifications of negligence including applicable Code

sections. . . ,” Johnson listed “common law negligence; medical malpractice —

OCGA § 51-1-27.”2 The defendants denied any liability and identified no additional

2
OCGA § 51-1-27 provides: “A person professing to practice surgery or the
administering of medicine for compensation must bring to the exercise of his
profession a reasonable degree of care and skill. Any injury resulting from a want of
5
Code sections applicable to the issue of negligence. No party listed OCGA § 51-1-29.5

as an applicable Code section in the pretrial order.

Partway through the trial, however, the defendants asserted that OCGA § 51-1-

29.5 governed the issue of their negligence. In a motion for directed verdict after the

close of Johnson’s case-in-chief, the defendants argued for the first time that under

OCGA § 51-1-29.5, Johnson was required to prove gross negligence. The defendants

argued that OCGA § 51-1-29.5 applied because, they said, Johnson’s expert witness

had testified on cross-examination that “that this was an emergency situation[.]”

(This is how the defendants characterized the witness’s trial testimony when they

argued their motion for directed verdict to the trial court. The record does not contain

a transcript of the testimony.)

The trial court expressed his belief that it seemed the defendants had

“sandbagged” Johnson with their argument under OCGA § 51-1-29.5. Nevertheless,

the trial court stated that the jury would have to determine whether the gross

negligence standard of OCGA § 51-1-29.5 applied in this case. The trial court denied

such care and skill shall be a tort for which a recovery may be had.”
6
the defendants’ motion for directed verdict, finding that Johnson had presented

evidence that would authorize a finding of liability under that higher standard.

Accordingly, over Johnson’s objection, the trial court instructed the jury that

“[i]f Georgia’s Emergency Medical Care Statute [OCGA § 51-1-29.5] applies, then

the Plaintiff must prove, by clear and convincing evidence, that the Defendant’s

actions showed gross negligence[,]” and instructed the jury on what constituted gross

negligence and under what circumstances OCGA § 51-1-29.5 would apply. A special

verdict form asked the jury to determine if Everett provided Johnson with emergency

medical care and, if so, to use “the applicable standard based on [that] finding” in

finding for either Johnson or the defendants. The jury found that Everett had provided

emergency medical care and returned a verdict in favor of the defendants.

Johnson moved for a new trial, challenging among other things the trial court’s

decision to let the jury consider the application of OCGA § 51-1-29.5. The trial court

denied the motion, stating: “If the Court had the authority to preclude the issue [of

OCGA § 51-1-29.5] from the jury because it was not identified in the pretrial order,

the Court would have considered making this preclusion.” But citing language that

in actions to which OCGA § 51-1-29.5 applies “the court shall instruct the jury to

7
consider” certain specified matters,3 OCGA § 51-1-29.5(d) (emphasis supplied), the

trial court concluded that he “did not have the authority to deny Defendants’ request

to charge the jury on the provisions of OCGA § 51-1-29.5, [and] the Motion for New

Trial is denied on this ground.”

Johnson unsuccessfully moved for reconsideration of the motion-for-new-trial

ruling. In denying that motion, the trial court noted that neither side had referenced

OCGA § 51-1-29.5 in the pretrial order, but held that

3
The matters that a trial court shall instruct the jury to consider in cases
invoking OCGA § 51-1-29.5 are:

(1) Whether the person providing care did or did not have the patient’s
medical history or was able or unable to obtain a full medical history,
including the knowledge of preexisting medical conditions, allergies, and
medications;
(2) The presence or lack of a preexisting physician-patient relationship
or health care provider-patient relationship;
(3) The circumstances constituting the emergency; and
(4) The circumstances surrounding the delivery of the emergency
medical care.

OCGA § 51-1-29.5(d).
8
[b]ased on the evidence presented at trial OCGA § 51-1-29.5 required the
factfinder to consider whether Defendants provided emergency medical
care, and if so, whether Plaintiff proved by clear and convincing evidence
that Defendants were grossly negligent. Therefore, it would have been
error not to charge the jury on OCGA § 51-1-29.5

Johnson argues that this was error because the pretrial order prohibited the

jury’s consideration of OCGA § 51-1-29.5. We find, however, that whether to amend

the pretrial order to permit the issue to be considered was a matter for the trial court’s

discretion.

A pretrial order “is intended to limit the claims, contentions, defenses, and

evidence that will be submitted to the jury thereby narrowing the course of the action,

and expediting its resolution.” Dep’t of Human Res. v. Phillips, 268 Ga. 316, 318(1)

(486 SE2d 851) (1997). “[W]hen entered, [the pretrial order] controls the subsequent

course of the action unless modified at trial to prevent manifest injustice.” OCGA §

9-11-16(b). Thus, “it generally is recognized that, unless the pretrial order is modified

at or before trial, a party may not advance theories or offer evidence that violate the

terms of the pretrial order.” Dep’t of Human Res., 268 Ga. at 318(1) (citations

9
omitted). See Long v. Marion, 257 Ga. 431, 433(2) (360 SE2d 255) (1987) (“[i]f a claim

or issue is omitted from the order, it is waived” (citation and punctuation omitted)).

This means that sometimes theories in support of a claim or defenses against a claim

will not be allowed at trial, even if they are authorized by law. See, e.g., Dep’t of

Human Res., 268 Ga. at 318-20(1) (holding that the trial court erred in allowing a

judgment that exceeded a statutory cap that the pretrial order stated governed the

case, even though other legal authority supported the larger award); Gardner v. Clark,

339 Ga. App. 62, 64 n.3 (793 SE2d 439) (2016) (holding that the trial court erred in

granting a directed verdict on the ground that there was no evidence that the plaintiff

was the administrator of his mother’s estate when that issue was not included in the

pretrial order); Williams v. Martin, 273 Ga. App. 562, 564-65(1) (615 SE2d 774) (2005)

(holding that the trial court erred in denying a motion for directed verdict even though

jury questions might have existed with regards to a theory asserted by the plaintiff at

trial, when the issue had not been raised in the pretrial order); Ga. Power Co. v.

O’Bryant, 169 Ga. App. 491, 493-95 (313 SE2d 709) (1983) (holding that the trial court

did not err in denying a motion to dismiss that was based on a defense not raised in the

pretrial order).

10
A trial court may modify a pretrial order before or during trial at the request of

a party. Dep’t of Human Res., 268 Ga. at 318(1). A trial court may also do so sua sponte

to prevent manifest injustice, a concept that includes consideration of fairness to the

party opposing modification. Id. at 319 (1) & n.14. Whether or not to modify a pretrial

order to allow consideration of issues not raised in it is a matter for the trial court’s

discretion. See Gajaanan Inv. v. Shahil & Sohail Corp., 323 Ga. App. 694, 698(1) (747

SE2d 713) (2013) (“The decision whether to disallow a party from raising matters

inconsistent with the pretrial order is within the discretion of the trial court.”

(Citation and punctuation omitted.)); Whorton v. Boatwright, 233 Ga. App. 369, 371

(504 SE2d 216) (1998) (holding that in deciding whether to allow amendment of a

pretrial order, the trial court “is clothed with a broad discretion”).

A pretrial order also may be “deemed modified to conform to evidence that is

admitted at trial without objection.” Dep’t of Human Res., 268 Ga. at 319(1). Again,

the principle of fairness applies: “[o]mission of an issue from a pretrial order is not

controlling if evidence pertaining to the issue is introduced without objection, the

opposing party is not unfairly surprised, and the issue is actually litigated.” Eagle Jets v.

Atlanta Jet, 321 Ga. App. 386, 400(8) n. 8 (740 SE2d 439) (2013) (citation and

11
punctuation omitted; emphasis added). And again, “[w]hether an issue has been tried

by the implied consent of the parties is a question of fact and a decision on this

question is generally considered to be within the sound discretion of the trial court.”

Andean Motor Co. v. Mulkey, 251 Ga. 32, 33(2) (302 SE2d 550) (1983) (citation and

punctuation omitted) (discussing the theory of implied consent in the context of

amending pleadings to conform to the evidence under OCGA § 9-11-15(b)).

Here, the trial court believed that the language of OCGA § 51-1-29.5 compelled

him to allow the jury to consider the applicability of that statute and its gross

negligence standard, despite the omission of that issue from the pretrial order. As

detailed above, the trial court stated in one of his written orders that the use of

compulsory language in the statute — the word “shall” — required the issue to be put

to the jury. We disagree with the trial court’s reading of the statute. The statute uses

that compulsory language to require specific jury charges only if OCGA § 51-1-29.5

applies. It states:

In an action involving a health liability claim arising out of the provision
of emergency medical care in a hospital emergency department or
obstetrical unit or in a surgical suite immediately following the evaluation
or treatment of a patient in a hospital emergency department, the court
shall instruct the jury to consider, together with all other relevant

12
matters[, specific questions of fact relating to the provision of care set
forth above in footnote 3].

OCGA § 51-1-29.5(d). Nothing in this statutory language required the trial court to

amend the pretrial order to allow the jury to decide the threshold issue of OCGA § 51-

1-29.5’s applicability (and thus the applicability of the gross negligence standard)

when the parties had not included the issue in their pretrial order. The trial court

retained discretion in that regard.

And we do not agree with the defendants’ contention that the pretrial order was

automatically amended by trial evidence. The defendants argue that Johnson himself

invoked the statute through his description of his symptoms at trial4 and that he

should have known the statute might apply to his action. But the trial court, rather

than this court, is in the best position to assess the fairness of modifying the pretrial

order mid-trial to allow the issue of OCGA § 51-1-29.5. And the trial court expressed

4
The other trial evidence cited by the defendants, the testimony of Johnson’s
expert witness, was not included in the appellate record. Although the record contains
the trial court’s comments on that expert witness’s testimony made when the trial
court denied the defendants’ motion for directed verdict, we do not agree with the
defendants’ characterization of those comments as an “explicit” finding that the
expert witness provided testimony sufficient to show Everett had provided emergency
medical care to Johnson.
13
concerns about the fairness of allowing the issue, suggesting that the defendants had

“sandbagged” Johnson and stating in one of his written orders that, had he the

authority, he “would have considered” precluding the issue because it had not been

identified in the pretrial order. Under these circumstances, we decline to hold that the

pretrial order was automatically modified in this case.

The trial court’s conclusion that he lacked the authority to disallow the issue

of OCGA § 51-1-29.5 was a significant legal error that constituted an abuse of

discretion. See generally RBC Global Asset Mgmt. (US) v. Lattimore, 320 Ga. 77, 77-

78(1) (907 SE2d 696) (2024) (“A trial court abuses its discretion when it commits a

significant legal error or a clear error as to a material factual finding.” (Citation and

punctuation omitted.)). By mistaking the scope of his authority to disallow that issue,

the trial court failed to exercise his discretion, so we vacate the denial of Johnson’s

motion for new trial and remand the case to the trial court for reconsideration of the

issue. See Walker v. State, 292 Ga. 262, 265(2) (737 SE2d 311) (2013) (holding that if

a trial court fails to exercise its discretion, an appellate court must vacate and remand

the case for the trial court to do so).

3. Expert testimony

14
Johnson claims that the trial court erred in permitting the defendants’ expert

witness, Dr. William Garrett, to give opinion testimony at trial.

Before trial, Johnson moved in limine to exclude Garrett’s testimony, arguing

that it did not meet the requirements for admission set forth in OCGA § 24-7-702

(“Rule 702”). The trial court denied Johnson’s motion in limine on the grounds that

it was untimely and Johnson had not “exercised due diligence” by deposing Garrett.

But at trial, before Garrett testified, the trial court revisited the issue.5 Outside the

jury’s presence, Garrett made a proffer of his opinion, Johnson conducted a voir dire

of him, and the trial court considered Johnson’s argument. The trial court ruled that

Garrett could give opinion testimony but that he could not, in discussing Johnson’s

medical history, speculate about the reasons for the actions of other medical providers

if those reasons were not expressly set forth in the medical records.

In his motion for new trial, Johnson again challenged the admissibility of

Garrett’s opinion testimony, and in denying that motion the trial court found that the

testimony satisfied Rule 702 and had been properly admitted.

5
For this reason we do not consider Johnson’s appellate arguments challenging
the trial court’s reasons for denying the motion in limine.
15
(a) Admissibility under Rule 702

Rule 702 governs the admissibility of expert opinion 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 if the product of reliable principles and methods; and

(4) The expert has reliably applied the principles and methods to the facts of the

case.

OCGA § 24-7-702(b).

The trial court acts as the gatekeeper of expert testimony under OCGA § 24-7-

702. 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. 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.
16
McWhirter v. Clinkscales, 377 Ga. App. 826, 828-29(2) (921 SE2d 472) (2025)

(citations and punctuation omitted).

Garrett, a neurologist experienced in treating patients with vestibular problems

and gait disorders, testified that he reviewed several boxes of Johnson’s medical

records from which he reached an opinion that Johnson’s gait and balance problems

were not related to “a vascular condition that could have been caused by Dr. Everett.”

Instead, Garrett attributed Johnson’s problems to a combination of three factors: (1)

longstanding, chronic damage to his vestibular process caused by a prescribed

antibiotic, gentamicin; (2) “ongoing degenerative disease in [Johnson’s] lumbar spine,

which affects the nerves going into his legs”; and (3) Johnson’s “use of alcohol, which

is a selective toxin affecting the vestibular system.”

Johnson challenges the reliability of Garrett’s testimony. Specifically, he

challenges an aspect of the opinion that Garrett expressed in his proffer: that Johnson

suffers from cerebellar ataxia, a brain condition associated with alcohol use. Johnson

argues that this was not based on facts in evidence, which he alleges showed only that

at an earlier point in time Johnson’s medical providers had identified cerebellar ataxia

17
as a possibility, during the process of differential diagnosis, but that cerebellar ataxia

subsequently was ruled out by an MRI.

Pretermitting whether the facts in evidence would support an opinion that

Johnson suffers from cerebellar ataxia, Garrett did not actually express that specific

opinion to the jury. (This may have been due to the limitations the trial court placed

on Garrett’s testimony, discussed above.) Instead, Garrett opined more generally that

the medical records showed that Johnson has a longstanding vestibular problem that

has been worsening over time, that the worsening of his problem predated the medical

care he received from Everett, and that Johnson’s regular use of alcohol in any

quantity was a probable cause of that worsening. Indeed, when on cross-examination

Johnson’s counsel stated, “I understand your opinion is that he has cerebellar ataxia

now,” Garrett replied, “My opinion is, is that he has a vestibular process that has

worsened over time, and that one of the — that the most likely ideology [sic] for the

worsening of his vestibular process is his chronic alcohol use.”

The trial court did not abuse his discretion in permitting this opinion or in

denying Garrett’s motion for new trial on this ground. “Reliability is a flexible, case-

specific inquiry, and a trial court has considerable leeway in deciding how to assess the

18
reliability of an expert’s opinion. In doing so, the court must focus on the expert’s

principles and methodology, not on the conclusions they generate.” McWhirter, 377

Ga. App. at 829(2) (citations and punctuation omitted).

Garrett testified that “determining the etiology of gait dysfunction ... solidly

resides in [his] specialty.” He reviewed medical records that set forth Johnson’s

history of vestibular problems and included notations that Johnson consumed alcohol

regularly, at the frequency of a glass of wine a night. From that information, Garrett

concluded that Johnson’s alcohol use was a factor in the worsening of his symptoms,

rebutting the claim that Everett’s alleged negligence caused the worsening. See

Haskins v. Ga. Neurosurgical Inst., 355 Ga. App. 781, 787(5) (845 SE2d 770) (2020)

(holding that “[d]efendants do not bear the burden of proving causation” and “may

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

in order to rebut the plaintiff’s specific causation testimony” (citation and

punctuation omitted)). Even if some of this opinion could be deemed speculative, as

Johnson argues, that does not prohibit its admission; “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[,]” McWhirter, 377 Ga. App.

19
at 830(2) (citation and punctuation omitted), and Garrett’s opinion was not wholly

speculative. “[W]hen an expert’s opinion is based partially on speculation, this goes

to the weight of the testimony rather than its admissibility.” Johnson v. Terminal Inv.

Corp., 374 Ga. App. 629, 635(1) (913 SE2d 14) (2025) (citation and punctuation

omitted). So to the extent Johnson challenges the correctness of Garrett’s conclusion

that the level of alcohol consumption documented in Johnson’s medical records could

have worsened his vestibular process (given his history of vestibular problems), that

was an issue for cross-examination, not a reason to prohibit the testimony. And the

record shows that Johnson’s counsel extensively cross-examined Garrett on that

conclusion.

(b) Timeliness of the defendants’ pretrial disclosure of the opinion

To the extent Johnson asserts that the trial court should have prohibited

Garrett’s opinion because the defendants’ pretrial disclosure of it was untimely, he

has not shown error by the appellate record. When that issue was raised at trial, the

trial court stated that he had “already ruled on the motion to exclude about the

timeliness.” The trial court’s ruling apparently had occurred in connection with a

pretrial hearing. The appellate record does not contain a transcript of that hearing, and

20
we must presume that the evidence presented at the hearing supported the trial

court’s ruling on the timeliness of the defendants’ disclosure. Gallemore v. White, 303

Ga. 209, 210(1) (811 SE2d 315) (2018).

4. Complaint in another action

Johnson argues that the trial court erred by admitting into evidence a copy of

a complaint in another action and allowing it to go out with the jury. In that 1997

complaint, Johnson alleged that a hospital in another state had negligently

administered to him the antibiotic gentamicin, causing him permanent injuries

including dizziness, imbalance, and vertigo. He has not shown that he preserved this

claim of error for appellate review.

The record we have on appeal shows that, during Johnson’s cross-examination,

the defendants’ counsel identified the complaint as an exhibit and read portions of it

aloud. Johnson’s counsel objected “to the admission of this exhibit and the reading

of any of it in open court based on relevance and lack of probative value.” After the

trial court overruled the objection, Johnson’s counsel then stated that he had “another

ground ... for exclusion of this exhibit.” The trial court pointed out that the

defendants’ counsel had “not moved to tender the exhibit.” Johnson’s counsel

21
replied, “Understood. I’ll wait.” The exhibit was not tendered into evidence at any

other point during the portion of trial covered by this transcript excerpt. Instead, the

record states that it was admitted into evidence the following day, during a portion of

the trial for which we do not have a transcript. Consequently, the limited appellate

record does not show whether or not Johnson objected to the admission of the exhibit

at the time of its tender.

To preserve this claim of error for appellate review, Johnson was required to

make a contemporaneous objection at the time the defendants tendered the exhibit for

admission. See In re Estate of Samuel, A25A1573, slip op. at 6-7(2) (Ga. App. Mar. 9,

2026) (2026 Ga. App. LEXIS 142). Because the record on appeal does not show

whether or not Johnson did so, he has not shown error by the record. See generally

Thorsen v. Saber, 288 Ga. 18, 19(2) (701 SE2d 133) (2010) (“the burden is upon the

party asserting error to show error by the record” (citation and punctuation omitted)).

To the extent Johnson also seeks to challenge the trial court’s decision to allow

the defendants to question him about the complaint on cross-examination, and in

doing so to read parts of it aloud, he has not shown an abuse of discretion. “Although

evidence of prior personal injury actions generally is not relevant, evidence concerning

22
a plaintiff’s other injuries may be admissible to show that the injuries currently at issue

are not the result of the defendant’s alleged negligence.” Kilday v. Kennestone

Physicians Ctr., 296 Ga. App. 818, 820(1) (676 SE2d 271) (2009) (citation and

punctuation omitted). See also Goforth v. Wigley, 178 Ga. App. 558, 560(2) (343 SE2d

788) (1986) (“evidence of prior claims for injuries arising from another unrelated

incident may be admissible to prove the cause and extent of injuries in the instant

action”).

Judgment vacated and case remanded with direction. Watkins and Padgett, JJ.,

concur.

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