Howard v. Walker

We originally granted certiorari in this legal malpractice case to review rulings by the Court of Appeals concerning proximate cause and expert opinion evidence as related to summary judgment. For the opinion of the Court of Appeals see Walker v. Howard, 144 Ga. App. 413 (241 SE2d 21) (1977). After further consideration we determined that the writ was improvidently granted and dismissed it.

The applicant for certiorari filed a motion for reconsideration, attaching a copy of a subsequent opinion of the Court of Appeals in Hughes v. Malone, 146 Ga. App. 341 (247 SE2d 107) (1978), which the applicant asserts is in conflict with the ruling in Walker v. Howard, supra. Thereafter we vacated the dismissal of the writ in Walker v. Howard so as to consider the apparent conflict and to reexamine the use of opinion evidence on motions for summary judgment.

The seminal case in Georgia regarding opinion evidence in summary judgment cases was Ginn v. Morgan, 225 Ga. 192 (2) (167 SE2d 393) (1969). In that case of first impression the court said (225 Ga. at 193-194): "Thus, we reach the solid conclusion that a summary judgment can never issue based solely upon opinion evidence.” However, that case involved opinion evidence by nonexpert witnesses as to the value of land and the mental competency of the seller. That decision did not consider the differences between cases in which opinions of nonexperts are admissible (as there) versus cases in which only opinions of experts are admissible (as here), and it did not consider differences between cases in which expert opinions are admissible but not essential (as there) versus cases in which at least one expert’s opinion is mandatory (as here). In other words, Ginn v. Morgan, supra, was not the type of case in which the plaintiff must produce expert opinion testimony in order to be entitled to have the case considered by a jury and to that extent it was dicta.

In the case now before us, in order for the plaintiff to recover he must produce opinion testimony of an expert witness. Berman v. Rubin, 138 Ga. App. 849, 853 (227 SE2d 802) (1976).

Although not required to do so at trial, the defendant here has produced an expert’s opinion in support of his motion for summary judgment. The plaintiff, although required at a minimum to produce a contrary expert opinion at trial in order to prevail, produced no contrary opinion in opposition to the motion for summary judgment. In a case such as this there is no genuine issue to be resolved by a jury.

Argued April 10, 1978

Decided October 4, 1978

Rehearing denied October 24, 1978.

Freeman & Hawkins, Paul M. Hawkins, Howell Hollis, III, M. Hardeman Blackshear, for appellants.

R. M. Bernhardt, Sharon A. Cole, Barwick, Bentley, Hayes & Karesh, M. Cook Barwick, for appellees.

We hold that in those cases where the plaintiff must produce an expert’s opinion in order to prevail at trial, when the defendant produces an expert’s opinion in his favor on motion for summary judgment and the plaintiff fails to produce a contrary expert opinion in opposition to that motion, then there is no genuine issue to be tried by the jury and it is not error to grant summary judgment to the defendant. Anderson v. Crippen, 122 Ga. App. 27 (176 SE2d 196) (1970); Dickerson v. Hulsey, 138 Ga. App. 108 (225 SE2d 464) (1976).

Ginn v. Morgan, supra, and its progeny continue to be correct insofar as nonexpert opinion cases are concerned and insofar as motions for summary judgment in favor of plaintiffs are concerned.

Judgment reversed.

All the Justices concur, except Nichols, C. J., who concurs specially, and Undercofler, P. J., and Jordan, J., who dissent.