FOURTH DIVISION
MCFADDEN, P. J.,
WATKINS and PADGETT, JJ.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
October 28, 2026
In the Court of Appeals of Georgia
A26A1476. ORIAL v. WOODHAMS EYE CLINIC, P. C. et al.
MCFADDEN, Presiding Judge.
Aylin Orial appeals from the final judgment entered after a jury trial on her
medical malpractice complaint, challenging the grant of a defense motion for partial
summary judgment and the denial of her motion for a mistrial. As to the denial of a
mistrial, Orial has failed to show an abuse of discretion, so we affirm that ruling. As
to the grant of partial summary judgment, the trial court correctly denied the original
motion. But Orial proffered expert testimony that the trial court effectively excluded
and which might have shown the existence of genuine issues of material fact; so we
vacate the denial of the motion for reconsideration and remand the case for the trial
court to reconsider summary judgment in light of the proffered testimony.
1. Facts and procedural posture
Orial filed a complaint against Dr. John Woodhams, Dr. Scott Lampert, Georgia
Retina, P. C., and others, claiming malpractice based on various theories related to
treatment of her left eye. Lampert and Georgia Retina moved for partial summary
judgment on claims that Lampert, as an agent of Georgia Retina, had breached the
standard of care by failing to order diagnostic visual field testing and failing to
diagnose vitreous prolapse. They expressly stated in their motion that they were not
seeking summary judgment on Orial’s claim that Lampert had breached the standard
of care by failing to refer her to a glaucoma specialist. After a hearing, the trial court
granted the motion for partial summary judgment as to the visual field testing and
vitreous prolapse claims directly against Lampert and Georgia Retina. But the court
further held that at trial Orial could present her claim that Lampert and Georgia
Retina were negligent for their failure to refer her to a glaucoma specialist qualified to
order diagnostic visual field testing and diagnose vitreous prolapse. Orial filed a
motion for reconsideration of the summary judgment order, proffering that her
experts would give new opinions that Lampert had breached the standard of care
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based on untimely disclosed information by the defendants about the date on which
a previously supplied photograph of the eye had been taken. The trial court denied the
motion.
The case proceeded to a jury trial, during which Orial moved for a mistrial
because Dr. Woodhams gave testimony that contradicted his prior deposition
testimony. The trial court denied the motion for mistrial. The jury subsequently
returned a verdict in favor of all defendants, and the trial court entered final judgment
on the defense verdict. This appeal followed.
2. Partial summary judgment
Summary judgment is proper if the evidence shows “that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law[.]” OCGA § 9-11-56(c).
A defendant may demonstrate that he is entitled to summary judgment
by either presenting evidence negating an essential element of the
plaintiff’s claims or establishing from the record an absence of evidence
to support such claims. Once the defendant has met this burden, the
plaintiff must point to specific evidence giving rise to a triable issue or
suffer summary judgment.
Griffin v. Turner, 350 Ga. App. 694, 695(1) (830 SE2d 239) (2019) (citation modified).
See also Cowart v. Widener, 287 Ga. 622, 623(1)(a) (697 SE2d 779) (2010).
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In moving for summary judgment, Lampert and Georgia Retina established the
absence of evidence supporting the visual field testing and vitreous prolapse claims,
pointing out that neither of Orial’s own experts, Dr. Joanna Olson and Dr. Houmana
Vosoghi, testified that Lampert had violated the standard of care by failing to conduct
visual field testing or diagnose vitreous prolapse. They cited Olson’s deposition
testimony that her “one and only criticism of Dr. Lampert” was his failure to refer
Orial to a glaucoma specialist, and that he did not violate the standard of care in any
other way. Olson further testified that since Georgia Retina did not have the
equipment necessary to perform such testing, it was not her opinion that Lampert
himself should have performed visual field testing; rather, she opined that Lampert
should have referred Orial for testing.
Olson offered no opinion as to Lampert’s failure to diagnose vitreous prolapse.
But as pointed out by Lampert and Georgia Retina, the other expert, Dr. Vosoghi,
deposed that he was unable to state that Lampert had violated the standard of care by
failing to diagnose vitreous prolapse.
Because Lampert and Georgia Retina met their burden of establishing the
absence of evidence supporting the visual field testing and vitreous prolapse claims
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directly against them, Orial must point to specific evidence giving rise to a triable issue
on those claims. Cowart, 287 Ga. at 623(1)(a); Griffin, 350 Ga. App. at 695 (1). But she
has failed to do so.
Orial first cites Olson’s deposition testimony that Lampert should have referred
her for visual field testing. While that testimony creates a triable issue as to the failure
to refer claim, it does not create such an issue on the claim that Lampert himself
should have ordered or performed such testing. As explained above, the trial court did
not grant summary judgment on the claim that Lampert should have made a referral;
on the contrary, the court expressly ruled that there were triable issues on the claim
that Lampert failed to refer Orial to a glaucoma specialist for visual field testing.
Orial also points to affidavits of Olson and Vosoghi, which were attached to the
complaint and amended complaint to comply with the pleading requirement of OCGA
§ 9-11-9.1, as creating genuine issues of material fact on both the visual field testing
and vitreous prolapse claims. Olson’s affidavit was attached to the original complaint
and stated that Lampert had deviated from the standard of care by “failing to obtain
diagnostic visual field testing.” But at her deposition, Olson clarified her affidavit,
explaining that it was never her opinion that Lampert should have performed the
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visual field testing; rather, her criticism all along was that he should have referred
Orial for such testing. Again, as explained above, the trial court expressly ruled that
such a referral claim was not subject to summary judgment and was a matter for trial.
Moreover, there is a distinction “between the sufficiency of the affidavit of
plaintiff’s expert for pleading purposes under OCGA § 9-11-9.1(a), and its evidentiary
sufficiency to defeat a motion for summary judgment under OCGA § 9-11-56.”
Williams v. Hajosy, 210 Ga. App. 637, 637-638(1) (436 SE2d 716) (1993) (emphasis in
original). “In no sense is the pleading requirement of [OCGA § ] 9-11-9.1 intended to
facilitate the just and efficient resolution of motions for summary judgment.”
Thompson v. Ezor, 272 Ga. 849, 852(2) (536 SE2d 749) (2000). Thus, an expert
affidavit which may be sufficient to satisfy the pleading standards of OCGA § 9-11-9.1
may nevertheless “be insufficient to satisfy the evidentiary standards of OCGA §
9-11-56 regarding summary judgment[.]” Graham v. Reynolds, 343 Ga. App. 274,
280(3) (807 SE2d 39) (2017) (citation modified). Those evidentiary standards include
the requirement of OCGA § 9-11-56(e) that “[s]worn or certified copies of all papers
or parts thereof referred to in an affidavit shall be attached thereto or served
therewith.” See also Williams, 210 Ga. App. at 639(2) (“where records relied upon
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and referred to in an affidavit are neither attached to the affidavit nor included in the
record and clearly identified in the affidavit, the affidavit is insufficient to withstand
summary judgment”) (citation modified).
Here, the Olson affidavit referred to and relied on medical records, but no
sworn or certified copies of any such records were attached to the affidavit, and it did
not clearly identify any particular records amongst the more than 4,000 pages of
documents and transcripts in the appellate record. See Scottman v. Emory Healthcare,
375 Ga. App. 727, 731-732(2) (917 SE2d 389) (2025) (the requirement of OCGA §
9-11-56(e) that sworn or certified copies of records referred to in an affidavit be
attached to the affidavit “has been relaxed somewhat for the practical purpose of
avoiding duplication by allowing clear identification of records already on file”)
(citation modified; emphasis supplied). Under these circumstances, while Olson’s
affidavit was sufficient for pleading standards under OCGA § 9-11-9.1, it was not
sufficient to meet evidentiary standards on summary judgment and create a genuine
issue of material fact as to the visual field testing claim.
As for Vosoghi’s affidavit, which was attached to Orial’s amended complaint
pursuant to OCGA § 9-11-9.1, it averred that Lampert had failed to follow the
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standard of care required to diagnose vitreous prolapse. But like the Olson affidavit,
the Vosoghi affidavit, which primarily addressed Lampert’s failure to refer Orial to a
glaucoma specialist, relied on purported medical records that were not attached to it
or clearly identified as showing that Lampert had breached the standard of care by
failing to diagnose vitreous prolapse. While the affidavit may have satisfied the
pleading requirement of OCGA § 9-11-9.1, it did not meet the evidentiary standard of
OCGA § 9-11-56(e) for purposes of summary judgment on that claim.
Because Orial has failed to point to probative evidence creating a genuine issue
of material fact as to the failure to conduct visual field testing and failure to diagnose
vitreous prolapse claims, the trial court did not err in granting partial summary
judgment on those claims.
3. Reconsideration
Orial argues that the trial court erred in denying her motion for reconsideration
of its partial summary judgment ruling, claiming that her experts were prepared to
give new opinions at trial based on the defendants’ belated disclosure of information
about the date of a photograph of Lampert’s eye. In denying the motion, the court
effectively excluded the expert testimony supporting Orial’s standard of care theories.
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The trial court’s ruling was improper because it excluded opinions based on evidence
that had been repeatedly requested, but which defendants did not timely disclose until
five weeks before trial. Accordingly, we vacate the denial of the motion for
reconsideration and remand the case with direction that the trial court reconsider the
grant of partial summary judgment in light of the newly proffered expert testimony.
4. Mistrial
Orial enumerates that the trial court erred in denying her motion for a mistrial
based on a purported discrepancy between Dr. Woodhams’ deposition and trial
testimony concerning a procedure referred to as a YAG capsulotomy. She claims that
Woodhams testified without qualification in his deposition that he performed a YAG
capsulotomy on Orial’s left eye on November 18, 2016, but that he then gave
“radically different” testimony at trial by stating that he did not know if the YAG
capsulotomy had been done on the left eye.
But Orial has failed to show that Woodhams unequivocally testified at his
deposition that he performed the YAG capsulotomy on Orial’s left eye on November
18, 2016. In support of this contention, she cites two pages of his deposition, neither
of which includes such unequivocal testimony. The first page contains Woodhams’
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testimony about having previously performed the YAG procedure on Orial’s right eye,
but does not included testimony that he performed such a procedure on her left eye.
The second page includes Woodhams’ testimony that during an appointment on
November 18th he diagnosed Orial’s left eye with a “clouded capsule” and made the
“decision to do the YAG” procedure. But he did not testify that he actually
performed the procedure on that, or any other, date. Thus, the premise of Orial’s
claim of error that Woodhams gave “radically different” deposition and trial
testimony is unfounded.
Under these circumstances, to the extent there was a discrepancy as alleged
between the cited deposition and trial testimony, it was not a basis for mistrial but was
a matter for Orial to use as impeachment. See OCGA § 9-11-32(a)(1) (at trial, a
“deposition may be used by any party for the purpose of contradicting or impeaching
the testimony of the deponent as a witness”); Yugueros v. Robles, 300 Ga. 58, 67(1) n.
7 (793 SE2d 42) (2016) (OCGA § 9-11-32(a)(1) provides “that any deposition may be
used for the purpose of impeachment”) (citation modified); Calloway v. Rossman, 150
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Ga. App. 381, 384(3) (257 SE2d 913) (1979) (a witness may be impeached at trial by
contradictory statements made in a previous deposition). The case law Orial relies on
to argue otherwise is inapposite, as those cases did not involve an alleged difference
between deposition and trial testimony, but involved sanctions for a party’s failure to
disclose the identity of a witness or provide documents in response to written
interrogatories. See Anglin v. Smith, 346 Ga. App. 456 (816 SE2d 426) (2018);
Shepherd Interiors v. City of Atlanta, 263 Ga. App. 869, 870(1) (589 SE2d 640) (2003);
Hanna Creative Enterprises v. Alterman Foods, 156 Ga. App. 376, 377(2) (274 SE2d 761)
(1980). See also Resurgens, P. C. v. Elliott, 301 Ga. 589, 596-597(2) (800 SE2d 580)
(2017) (“where a party has provided false or intentionally misleading responses to
written discovery, including deliberately suppressing the name of a material witness,
the aggrieved party may seek sanctions for the same”). Accordingly, Orial has failed
to show an abuse of discretion in the denial of her motion for mistrial. See AT Sys.
Southeast v. Carnes, 272 Ga. App. 671, 673(2) (2005) (“A trial court’s denial of a
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motion for mistrial will not be disturbed absent a manifest abuse of discretion.”)
(citation modified).
Judgment affirmed in part, vacated in part, and remanded with direction. Watkins
and Padgett, JJ., concur.
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