BECTON DICKINSON AND COMPANY v. WALKER (2026)

After the jury returned a verdict awarding punitive damages in the second part of a bifurcated trial in this toxic tort suit filed by Gary Walker against Becton, Dickinson and Company and C. R. Bard (“the Defendants”), the trial court ordered a partial retrial.¹ This Court granted the Defendants’ interlocutory application, and they appeal, challenging the partial retrial and enumerating several errors regarding the underlying trial. For the reasons that follow, we affirm the trial court's grant of a partial retrial. The remaining enumerations were waived.

For more than 50 years, the Defendants have operated a medical equipment sterilization facility, global distribution center, and warehouses in Covington, Georgia (the “Facilities”).² The Defendants’ sterilization process uses ethylene oxide (“EtO”), a chemical that the United States Environmental Protection Agency (“EPA”) and others have determined to be carcinogenic in humans. Between 1970 and 1999, Walker worked as a truck driver in the Covington area, transporting material (including loading and unloading material) to and from the Defendants’ Facilities almost daily. Walker also lived within a two-mile radius of the Facilities between 1991 and 2017.

In 2017, Walker was diagnosed with diffuse large b-cell lymphoma (“DLBCL”), which he contended was the result of his exposure to EtO from the Defendants’ unsafe use of the substance in the Facilities and from fugitive emissions into the surrounding neighborhood. One of Walker's experts testified that decades of exposure to EtO was medically highly likely, simply more likely than not, to be a meaningful contributing cause of Walker's DLBCL. After the publication of a news article in 2019, Walker discovered that EtO was emitted in high quantities from the Facilities, and he sued the Defendants in November 2021, alleging claims of negligence and nuisance, and requesting compensatory and punitive damages.

The Defendants requested a bifurcated trial, which commenced on April 14, 2025. At the end of the liability phase, the jury returned a special verdict in favor of Walker, explicitly finding the Defendants committed negligence and created a nuisance, awarding him $20 million in compensatory damages, and finding that punitive damages were due to be awarded (“Phase I”). The foreperson delivered the signed and dated verdict to the court and announced the decision.

On May 5, 2025, jury deliberations for the punitive damages phase (“Phase II”) began, during which the jury sent several questions to the court, specifically about one of the special interrogatories regarding specific intent to cause harm: “Do you find that the Defendants believed the consequences of their acts were certain, or substantially certain, to result in harm and still went ahead with their acts?” The following day, the jury returned to deliberate, but eventually announced that they were deadlocked on this special interrogatory. The court gave them an Allen charge,³ and deliberations resumed.

Later that day, the jury announced they had a verdict, and the foreperson delivered the signed and dated verdict to the court, announcing that the jury awarded $50 million in punitive damages to Walker; with regard to the special interrogatories, the jury found in favor of the Defendants on one, but found against the Defendants on the second, which had been the subject of the earlier deadlock — whether the Defendants were substantially certain their acts would cause harm and still acted. The Defendants requested a poll, during which Juror 1 recanted her unanimity as to the Phase II verdict. Specifically, in response to the court's question whether the verdict was hers, she responded, “Your Honor, I defer to the group. ․ We were told to be unanimous.” The juror stated that she was just trying to be honest, and the court asked whether she “agreed with this verdict just to get along with everybody else and get a unanimous verdict?” The juror again responded, “[w]e were told we needed to be unanimous.” After completing the poll with the remainder of the jurors still unanimous in their decision, the trial court sent the jury out. Subsequently, the court called Juror 1 back into the courtroom, where she was asked questions about her recantation. At that time she explained that her only disagreement was with the second special interrogatory, and the jury was unanimous as to the amount of punitive damages it had awarded.

The trial court initially granted a mistrial as to the entirety of Phase II, but after briefing and a hearing, the trial court granted a partial mistrial on Phase II and ordered retrial solely on the issue of specific intent of harm. The court concluded that the jury's Phase I verdict was a unanimous verdict of $20 million returned in open court, valid, final, and separable from the Phase II questions of the amount of punitive damages and specific intent to cause harm. Next, the court concluded that the first question of the Phase II verdict, which awarded $50 million in punitive damages, was also final, valid, unanimous, and severable from the issue of specific intent to cause harm, which related only to the statutory cap on punitive damages. Finally, the court declined to enter final judgment on the jury's verdict until retrial and return of a unanimous decision on the issue of specific intent to cause harm. The trial court certified that decision for immediate review, and this Court granted the defendant's application for interlocutory appeal.

1. The Defendants first argue that the trial court erred by ordering only a partial retrial after the juror recanted on her unanimity to the determination of specific intent to harm. The Defendants contend that full retrial on both liability and punitive damages is required. We disagree.

This Court reviews a trial court's ruling on a motion for mistrial for abuse of discretion, but it reviews legal questions de novo. See Monroe v. State, 315 Ga. 767, 775(2), 784–85(7)(a), 884 S.E.2d 906 (2023). When we interpret a statute, “we afford the ․ text ‘its plain and ordinary meaning.’ ” Deal v. Coleman, 294 Ga. 170, 172(1)(a), 751 S.E.2d 337 (2013).

“Our common law ․ adheres to certain general principles in the correction of trial errors that affect less than the whole of a judgment.” Martin v. Six Flags Over Ga. II, L.P., 301 Ga. 323, 337(III), 801 S.E.2d 24 (2017). Specifically, if

a judgment is entire and indivisible, it can not be affirmed in part and reversed in part, but the whole must be set aside if there is reversible error therein. But where a judgment appealed from can be segregated, so that the correct portions can be separated from the erroneous, the court will not set aside the entire judgment, but only that portion which is erroneous.

Id. at 338(III), 801 S.E.2d 24 (punctuation omitted). See also Swindell v. Swindell, 231 Ga. 167, 168, 200 S.E.2d 736 (1973) (“[A] trial court or an appellate court, after examining the record and transcript to determine if the issues are readily divisible, can order a re-trial only on specified issues in the case that are readily divisible from other issues in the case that were rightly deci[ ]ded, free from error.”). “Limiting the scope of retrial to only those distinct portions of the judgment that are infirm serves the dual objectives of judicial economy and respect for the jury's verdict.” Martin, 301 Ga. at 338(III), 801 S.E.2d 24. See also OCGA § 9-12-4 (“Verdicts ․ shall not be avoided unless from necessity.”); Lyman v. Cellchem Int'l, LLC, 342 Ga. App. 446, 803 S.E.2d 375 (2017) (holding that a retrial was required on the issue of punitive damages alone).

Based on the reasoning of Martin, we discern no error in the trial court's order granting a partial retrial only on the issue of specific intent to harm. See Martin, 301 Ga. at 338(III), 801 S.E.2d 24. See also Aldworth Co., Inc. v. England, 286 Ga. App. 1, 5(2)(b), 648 S.E.2d 198 (2007) (remanding for a jury trial solely on the question of specific intent to do harm in the context of a default judgment with insufficient evidence to support the full default award of $1,000,000). OCGA § 51-12-5.1(d)(1) instructs that “[i]n any case in which punitive damages are claimed, the trier of fact shall first resolve from the evidence produced at trial whether an award of punitive damages shall be made.” Thereafter,

[i]f it is found that punitive damages are to be awarded, the trial shall immediately be recommenced in order to receive such evidence as is relevant to a decision regarding what amount of damages will be sufficient to deter, penalize, or punish the defendant in light of the circumstances of the case. It shall then be the duty of the trier of fact to set the amount to be awarded according to subsection (e), (f), or (g) of this Code section, as applicable.

OCGA § 51-12-5.1(d)(2). These portions of the verdict have been unanimously decided by the jury during Phase I and the first portion of Phase II. The only issue that remains is “to set the amount to be awarded,” pursuant to OCGA § 51-12-5.1(f), (g), which is the issue of specific intent to harm, the determination of which will result in either an award of $50 million or a statutory maximum of $250,000, depending on the verdict of the jury.

The Defendants have presented no convincing reason why the issue of specific intent to harm cannot be severed and decided separately from the unanimous portions of the verdict. Compare Martin, 301 Ga. at 338–39(III), 801 S.E.2d 24 (collecting cases); Lyman, 342 Ga. App. at 447–48, 803 S.E.2d 375. OCGA § 51-12-5.1(d)(2) specifically instructs the trier of fact to make the determination of specific intent after making a determination of the appropriate amount of punitive damages. See id. And while it may be the case that much of the evidence will be repeated in this new trial, that evidence would be repeated to the new jury if a full retrial occurs.

Like the Court in Martin, we also see no reason why this determination need be made by the same jury. See Martin, 301 Ga. at 339(III), 801 S.E.2d 24 (“the natural presumption that a single fact-finder will make the determination of liability, damages sustained, and apportionment ․ is no different than the presumption that a single fact-finder will make liability and damages determinations in other contexts” where only partial retrial has occurred). The plain language of the statute may presume the same group of jurors will make the decision, but nothing in the language requires it. OCGA § 51-12-5.1. Cf. England, 286 Ga. App. at 5(2)(b), 648 S.E.2d 198. Thus, the trial court here did not err in limiting retrial to the sole issue of specific intent to cause harm.

(a) The Defendants cite Kane v. Cohen, 182 Ga. App. 485, 356 S.E.2d 94 (1987), and Se. Pain Specialists, P.C. v. Brown, 303 Ga. 265, 811 S.E.2d 360 (2018), in support of their argument for a full retrial on all issues, but neither of these cases apply factually.

In Kane, the jury returned a verdict without determining an amount for punitive damages, but instead of declaring a mistrial or instructing the jury to deliberate further, the trial court thereafter entered the verdict as the final judgment. Kane, 182 Ga. App. at 485, 356 S.E.2d 94. This Court reversed the court in Kane, holding that a new trial was required because the verdict was incomplete, and the judgment did not cover the issues submitted to the jury. Id. at 486(1), 356 S.E.2d 94 (relying on the language of OCGA § 9-12-1 that the verdict was incomplete and could not support the judgment). Because no judgment was entered in this case, the trial court's decision to order a partial retrial because of the juror's recantation of unanimity was appropriate, and Kane and OCGA § 9-12-1 are inapplicable to this situation. Kane, 182 Ga. App. at 485, 356 S.E.2d 94.

Likewise, Brown involved an improper jury charge that infected both the liability and damages phases of trial, thereby undermining every phase of the trial. Brown, 303 Ga. at 274–75(2)(c), 811 S.E.2d 360. Thus, Brown is inapposite to the situation here — a single juror's recantation of unanimity as to one interrogatory question.

(b) The Defendants also contend that OCGA § 51-12-5.1 requires the same jury to determine the issues on retrial, and therefore, a wholly new trial is required. The argument is without merit. The pertinent language states that “[i]f it is found that punitive damages are to be awarded, the trial shall immediately be recommenced in order to receive such evidence as is relevant to a decision regarding what amount of damages will be sufficient.” OCGA § 51-12-5.1(d)(2). Thereafter, “[i]t shall ․ be the duty of the trier of fact to set the amount to be awarded according to subsection (e), (f), or (g) of this Code section, as applicable.” Id. In this case, the trial was immediately recommenced and the amount of punitive damages was determined. As stated above, although there is a presumption that the same jury will make every determination, see Martin, 301 Ga. at 339(III), 801 S.E.2d 24, there is no explicit requirement for a full retrial if the jury cannot decide all of the issues.

(c) Applicability of OCGA § 51-12-15 (2025). The Defendants contend that this new Code section, which went into effect on April 21, 2025, see Ga. L. 2025, p. 19, § 8/SB 68, requires an entirely new trial because it requires the trifurcated trial to utilize the same judge and jury for each phase of trial. Pretermitting whether this Code section could be applied mid-trial, the requirement does not apply in this case because the Defendants did not file a written demand for such a procedure prior to entry of the pretrial order. See OCGA § 51-12-15(a). See also Deal, 294 Ga. at 172(1)(a), 751 S.E.2d 337.

(d) Constitutional violation. The Defendants contend that a partial retrial will violate their constitutional right to a jury trial, but there was no ruling on this issue by the trial court. City of Albany v. S. Ga. Rails to Trails, 375 Ga. App. 494, 503(4), 915 S.E.2d 720 (2025) (“Georgia appellate courts will not rule on a constitutional question unless it clearly appears in the record that the trial court distinctly ruled on the point.” (quotation marks and emphases omitted)). Accordingly, this argument presents nothing for review.

2. Before moving on to the Defendants’ four remaining enumerations of error, we must address our jurisdiction. See Duke v. State, 306 Ga. 171, 172(1), 829 S.E.2d 348 (2019). In its order granting a certificate of immediate review, the trial court limited review solely to the September 15, 2025 order, which ordered a limited retrial as discussed in Division 1. At oral argument, the parties agreed that the trial court could not limit our review in that manner. See Brooks v. Quinlan, 353 Ga. App. 573, 576 n.6, 839 S.E.2d 51 (2020).⁴

In the case at bar, the Defendants’ interlocutory application raised the following issues:

(A) The jury's entire verdict must be set aside as it fails to resolve all the issues in the pleadings[, including three sub-arguments];

(B) Appellate authority, OCGA § 51-12-5.1, and jury instructions given in this case contemplate that the same jury will hear both phases of a trial involving punitive damages; and

(C) A retrial solely on specific intent to cause harm would violate defendants’ right to a fair trial under the Georgia and Federal Constitution.

This Court granted the interlocutory application, and the Defendants filed a notice of appeal referencing only the September 15 order. In their appellate brief, however, the Defendants enumerated several errors unrelated to the September 15 order and that were not referenced in their interlocutory application.

After this appeal was docketed, this Court decided Johnson & Johnson v. Monroe, 379 Ga. App. 791, 793(1), 931 S.E.2d 244 (2026) (cert. applied for S26C1825). In Johnson & Johnson, this Court reviewed whether the appellant was barred from enumerating errors on appeal that it had failed to raise in its interlocutory application. Id. at 792–93(1), 931 S.E.2d 244. The only additional error not raised in the interlocutory application was an alleged constitutional violation, and this Court held that we lacked jurisdiction to review the constitutional error, referencing the Supreme Court of Georgia's decision in Zekser v. Zekser, 293 Ga. 366, 369(2), 744 S.E.2d 698 (2013) (limiting review on appeal to errors raised in the appellant's discretionary application). This Court explained in Johnson & Johnson that

[t]he Supreme Court of Georgia has held that an application for discretionary appeal must enumerate the errors to be argued on appeal, ‘and so, when we grant discretionary review, it necessarily is limited to the errors actually enumerated in the application.’ Similarly, an applicant for interlocutory appeal must set forth the need for an appeal and ‘the issue or issues involved therein.’ OCGA § 5-6-34(b). It follows that when we grant an interlocutory appeal, our review is likewise limited to the issues set forth in the application.

Johnson & Johnson, 379 Ga. App. at 793(1), 931 S.E.2d 244. This Court found that because the constitutional issue was not raised in the interlocutory application, it was not raised at the earliest opportunity (as constitutional issues must be) and therefore not reviewable. Id.

After that decision was issued, Walker received leave and filed a supplemental brief arguing that our appellate review should be limited to the issues raised in the Defendants’ interlocutory application. See id. The Defendants also filed a supplemental brief, arguing that Johnson & Johnson's holding was limited to the failure to timely raise a constitutional issue, so it was not applicable to the question of whether they properly raised their additional enumerations of error.

While we agree that Johnson & Johnson only reviewed the failure to timely raise a constitutional argument, see Zepp v. Brannen, 283 Ga. 395, 397, 658 S.E.2d 567 (2008) (explaining that courts are not bound to follow dicta), we think that the broader premise still holds. Here, the Defendants failed to raise in their interlocutory application issues other than those related to the September 15 limited-retrial order, and therefore, they are barred from asserting them in this appeal.

The Defendants argue that the broad language of OCGA § 5-6-34(d) allows them to enumerate errors that were not asserted in their interlocutory application. OCGA § 5-6-34(d) states that if “an appeal is taken under ․ subsection ․ (b) ․ all judgments, rulings, or orders rendered in the case which are raised on appeal and which may effect the proceeding below shall be determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone [.]” The answer turns on the interpretation of the statute's phrase “raised on appeal.” Id. In the case of a direct appeal under OCGA § 5-6-34(a), this language refers to the enumerations of error, but in the case of an interlocutory appeal under OCGA § 5-6-34(b), an issue is “raised on appeal” if asserted in the interlocutory application.⁵ See Johnson & Johnson, 379 Ga. App. at 793(1), 931 S.E.2d 244. (“[W]hen we grant an interlocutory appeal, our review is ․ limited to the issues set forth in the application.”). See also Brown v. Hall County, 262 Ga. 172, 173(3), 416 S.E.2d 90 (1992) (“We did not grant the interlocutory application to consider those issues and they will not be addressed at this time.”). Cf. S. Outdoor Promotions, Inc. v. Nat'l Banner Co., Inc., 215 Ga. App. 133, 133–34(1), 449 S.E.2d 684 (1994) (declining review of cross-appellant's enumeration of error in response to a granted application).

Granting an interlocutory application is not mandatory, see OCGA § 5-6-34(b), and part of the decisional process involves reflection on the issues articulated in the application. Cf. Se. Sec. Ins. Co. v. Empire Banking, 268 Ga. 450, 451, 490 S.E.2d 372 (1997) (“In considering an application for an interlocutory appeal, an appellate court certainly is permitted to exercise its discretion. It also is authorized to exercise its discretion to dismiss an appeal filed as the result of the grant of an application.”). We frequently have dismissed interlocutory appeals as improvidently granted, which would not be possible if OCGA § 5-6-34(d) constituted a requirement to pass on the merits of every enumeration of error. See, e.g., SunTrust Bank v. Bickerstaff, 349 Ga. App. 794, 796 n.2, 824 S.E.2d 717 (2019); Coon v. Med. Center, Inc., 335 Ga. App. 278, 282, 780 S.E.2d 118 (2015). Accordingly, because the Defendants failed to reference the orders or issues underlying enumerations two through five as issues in their interlocutory application, those enumerations of errors were waived for purposes of this appeal.⁶

Based on the above, the trial court's September 15 order granting a partial retrial is affirmed.

Judgment affirmed.

I fully concur in Division 1 of the majority's decision. But because I read the plain language of OCGA § 5-6-34(d) to foreclose the “waiver” conclusion reached by the majority in Division 2 of this opinion, I must respectfully dissent as to Division 2.

After correctly concluding that Johnson & Johnson v. Monroe, 379 Ga. App. 791, 793(1), 931 S.E.2d 244 (2026) (cert. applied for S26C1825), ruled only on the waiver of a constitutionality argument, the majority then embraces Johnson & Johnson's dicta ¹ as support for its holding that this Court's review in this case, on an appeal authorized by our grant of an OCGA § 5-6-34(b) application for interlocutory review, is limited only to those issues set forth in the initiating interlocutory application.

Following the issuance of a certificate of immediate review, an application for interlocutory review must set forth the need for an appeal and “the issue or issues involved therein.” OCGA § 5-6-34(b). This is not dissimilar to the dictates of OCGA § 5-6-35(b) requiring an application for discretionary appeal to “enumerat[e] the errors to be urged on appeal.” And an applicant for discretionary appeal is deemed to have waived any error not enumerated in the initiating application. Zekser v. Zekser, 293 Ga. 366, 369(2), 744 S.E.2d 698 (2013). See also Miller v. State, 374 Ga. App. 360, 366(3), 912 S.E.2d 733 (2025). Significantly, however, OCGA § 5-6-35 does not contain an analogue to OCGA § 5-6-34(d), which states:

Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere.

OCGA § 5-6-34(d) (emphasis added). This language is not ambiguous. “[W]hen we consider the meaning of a statute, we always must presume that the General Assembly means what it says and says what it means, and an unambiguous statute must be afforded its plain meaning.” Reeves v. Upson Regional Med. Ctr., 315 Ga. App. 582, 586(2), 726 S.E.2d 544 (2012) (citation modified). See also Ray v. Barber, 273 Ga. 856, 856(1), 548 S.E.2d 283 (2001) (“Where a statute is susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it.”(punctuation omitted)).

It is true that OCGA § 5-6-34(b) speaks of the appellate court exercising its discretion to “permit an appeal to be taken from the [otherwise unappealable] order, decision, or judgment” which a trial judge certifies “is of such importance to the case that immediate review should be had.” OCGA § 5-6-34(b) (emphasis added). And were there no subsection (d), an argument could readily be made that any subsequently granted interlocutory appeal would be limited solely to issues surrounding the “order, decision, or judgement” on which the certificate was secured. But in light of the directive of OCGA § 5-6-34(d), we have already rejected that argument. Brooks v. Quinlan, 353 Ga. App. 573, 576 n. 6, 839 S.E.2d 51 (2020) (considering all issues raised by an appellant and not simply the issue on which the trial court granted its certificate of immediate review).

In the face of OCGA § 5-6-34 (d)’s clear and unambiguous language, it is unsound to conclude that Appellants waived interlocutory review of any issue they did not raise in their initiating application.

In the future, should the Court wish to exercise is discretion - explicitly recognized in OCGA § 5-6-34(b) - to limit its interlocutory review to issues surrounding the “order, decision, or judgement” on which the trial court's certificate of immediate review was secured, it should say so in its order granting the application for interlocutory review. See, e.g., Brown v. Hall Cnty., 262 Ga. 172, 173(3), 416 S.E.2d 90 (1992) (granting an application for interlocutory appeal to consider three specific issues and declining to review additional claims of error); S. Outdoor Promotions, Inc. v. National Banner Co., 215 Ga. App. 133, 133-34(1), 449 S.E.2d 684 (1994) (granting “limited interlocutory review” and “limit[ing] its jurisdiction to the resolution only of the appellate issues for which permission was affirmatively granted to file an interlocutory review”).

Because this Court's order granting Appellants’ application for interlocutory appeal did not place any limits on the issues it would review in a subsequently filed appeal, and because OCGA § 5-6-34(d) otherwise mandates our review and determination on “all” trial court decisions “raised on appeal and which may affect the proceedings below,” I would not deem Appellants’ enumerated errors two through five to be waived.

FOOTNOTES

1.   Oral argument of this case occurred on May 14, 2026, and a recording is available at https://vimeo.com/1193444896. Dr. Lisa Miller, The Georgia Trial Lawyers Association, The Advanced Medical Technology Association, The Georgia Defense Lawyers Association, and The Products Liability Advisory Council, Inc., filed amicus briefs in this appeal.

2.   The record in this case is large. It spans 175 volumes and includes over 78,000 pages. As this Court previously has explained, we “will not ‘cull the record on behalf of a party, particularly in a case such as this where the record is voluminous.’ ” Pneumo Abex, LLC v. Long, 357 Ga. App. 17 n.3, 849 S.E.2d 746 (2020). “ ‘[I]f we have missed something in the record or misconstrued an argument, the responsibility rests with [the Defendants’] counsel.’ ” Id. We also remind counsel that “[r]eference to an electronic record should be indicated by the volume number of the electronic record and the PDF page number within that volume (Vol. Number - PDF Page Number; for example, V2-46).” Ga. Ct. App. R. 25(d)(2).

3.   Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

4.   In Brooks, the trial court first realigned the parties and subsequently disqualified the attorney who represented both the appellant and a nominal party because the parties were on opposite litigation sides post-alignment. 353 Ga. App. at 576 n.6, 839 S.E.2d 51. Although the trial court's certificate of immediate review “attempted to limit this Court's review to” the issue of attorney disqualification, the appellant also challenged the realignment order in its interlocutory application. Id. Pursuant to OCGA § 5-6-34(d), this Court addressed “all of the issues raised” by the appellant, but the appellant did not raise any issues in its enumerations of error that were not also raised in its interlocutory application. Id.

5.   In the case of a cross-appeal, we will consider additional errors that were not articulated in the application. Compare UPS of America, Inc. v. Whitlock, 366 Ga. App. 542, 545 n.3, 883 S.E.2d 556 (2023) (noting that this Court had jurisdiction to consider errors raised in a cross-appeal that were not raised in the application for interlocutory appeal based on the language of OCGA § 5-6-34(d)). This makes sense because it is the first opportunity for the appellee to raise on issue on appeal. In this case, the Defendants had control over the content of the interlocutory application and failed to include reference to all the issues they wished to raise on appeal.

6.   We also note that this case comes to us at the very end of what has been years of proceedings and weeks of trial, and had the Defendants raised in their interlocutory application all the issues they would thereafter enumerate as error, the interlocutory application may not have been granted and the case would have been allowed to proceed to retrial more expeditiously. Se. Ceramics, Inc. v. Klem, 246 Ga. 294, 295(1), 271 S.E.2d 199 (1980) (“We frown upon the practice of appellate review by installment and seek to encourage appellate determination of issues in a case in the fewest possible appellate procedures.”). The sentiment that this is not the appropriate time for review of the evidentiary and trial practice errors is echoed in the Defendants’ statement in their own brief that they are not waiving the “numerous other errors” they allege occurred below. We further note that the Defendants’ errors two through five are preserved “and the issues may be raised by [the Defendants] in any future appellate review available to them.” Brown, 262 Ga. at 173(3), 416 S.E.2d 90.

1.   In Johnson & Johnson, this Court correctly concluded that we lacked jurisdiction to review the constitutional challenge presented. Id. at 792(1), 931 S.E.2d 244. But in dicta, the Court proceeded to suggest that because applicants for discretionary appeal under OCGA § 5-6-35 must enumerate the errors to be urged on appeal or they are deemed waived, and applicants for interlocutory appeal must set forth “the issue or issues involved” in the desired appeal, “it follows that when we grant an interlocutory appeal, our review is likewise limited to the issues set forth in the application.” Id. at 793(1), 931 S.E.2d 244.

Doyle, Presiding Judge.

Markle, J., concurs. Whitaker, J., concurs in Division 1 and dissents in Division 2.