Evidence - John E. Hall, Jr. and W. Scott Henwood

• Publication year: 2010

Evidence

by John E. Hall, Jr.* and W. Scott Henwood**

I. Introduction

As you may know, July 11, 2010, marked the fiftieth anniversary of Harper Lee's Pulitzer Prize-winning classic, To Kill A Mockingbird,¹ which anecdotally inspired many in the South and beyond to enter the legal profession. Therefore, it is fitting to open this Article with Atticus Finch's oft-quoted closing statement:

The state has not produced one iota of medical evidence . . . that the crime Tom Robinson is charged with ever took place . . .

... I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family. In the name of God, do your duty.

... In the name of God, believe [Tom Robinson].²

This endearing work of literature encapsulates the importance of evidence, which law students often accuse of being boring, but which is the foundation of justice even for those whose property or life are at risk.

* Founding Partner in the firm of Hall, Booth, Smith & Slover, P.C., Atlanta, Georgia. Mercer University (B.A., 1981); Mercer University, Walter F. George School of Law (J.D., 1984). Member, Mercer Law Review (1982-1984); Student Writing Editor (1983-1984). Member, State Bar of Georgia.

** Counsel for the firm of Hall, Booth, Smith & Slover, P.C. Georgia State University (B.B.A., 1976); Woodrow Wilson College of Law (J.D., 1978). Former reporter of decisions for the Georgia Supreme Court and Georgia Court of Appeals.

1. Harper Lee, To Kill a Mockingbird (Harper Collins Publishers 50th anniversary ed. 2010) (1960).

2. Id. at 231, 234.

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This Survey provides examples of evidentiary decisions made by Georgia courts from June 1, 2009 to May 31, 2010.³ Some of the decisions described below represent substantive changes in the law. More of them illustrate ways that existing law can be applied to yield different results.

II. Revision of the Rules

Attempts to align Georgia's evidence rules more closely with the Federal Rules of Evidence have been delayed at least another year.⁴ During the 2009 legislative session, the Georgia House of Representatives introduced House Bill 24,⁵ which was designed to "revise, supersede, and modernize provisions relating to evidence."⁶ On March 17, 2010, the bill passed the House Judiciary Committee, the scene of previous resistance from legislators, but further consideration ofthe bill was postponed until the 2010 session.⁷ The Senate did not vote on the bill during this year's session.⁸ A driving force behind these attempts to amend portions of the Official Code of Georgia Annotated (O.C.G.A.) that govern rules of evidence is the concern about the inconsistencies created by "140 years of judicial gloss" of the statutory rules.⁹ In some cases, courts have abandoned the statutes all together and created somewhat of a common law rule in a gradual rejuvenation of Georgia law.¹⁰

III. EXPERT TESTIMONY

"If an expert says it can't be done, get another expert." — David Ben-Gurion¹¹

3. For analysis of Georgia evidence law during the prior survey period, see Marc T. Treadwell, Evidence, Annual Survey of Georgia Law, 61 Mercer L. Rev. 135 (2009).

4. See generally Robert D. Ingram, Introduction, A Brief Overview of the Proposed New Georgia Rules of Evidence, 13 Ga. B.J. 30, 30 (Aug. 2007) (explaining attempts beginning in 1986 to revise the Georgia rules).

5. Ga. H.R. Bill 24, Reg. Sess. (2009) (unenacted).

6. Id.

7. For an overview of the status history of Ga. H.R. Bill 24 see http://www.legis.ga. gov/legis/2009_10/sum/hb24.htm.

8. See supra note 5.

9. Paul S. Milich, A Brief Overview of the Proposed New Georgia Rules of Evidence, 13 Ga. B.J. 30, 31 (Aug. 2007).

10. Id.

11. Rosemarie Jarski, Words from the Wise: Over 6,000 of the Smartest Things Ever Said 170 (2007).

2010] EVIDENCE 127

A. Qualifications

Great concerns have arisen in the past about the effect that the development of the expert witness industry has had on our court system.¹² These concerns contributed to the passage of O.C.G.A. § 24-967.1,¹³ which was enacted as part of Georgia's 2005 Tort Reform package.¹⁴

Courts are continuing to define how this provision should be applied, which has led to many opinions defining and redefining the provision's role in qualification determinations for expert testimony. For an expert to be qualified to testify, the expert must first meet a licensing requirement¹⁵ and a threshold of recent active practice in the specialty of the allegedly negligent practitioner.¹⁶

During the survey period, the Georgia Court ofAppeals provided some insight into the scope of these requirements. In Craigo v. Azizi,¹⁷ the trial court found the plaintiff's expert unqualified to testify that an anesthesiologist breached the standard of care by administering general anesthetic to the plaintiff before performing an interscalene nerve block.¹⁸ The court of appeals upheld the trial court's ultimate determination that the expert lacked sufficient qualifications, but the court of appeals held that the trial court had abused its discretion in concluding that the expert's time spent working as a resident did not count toward his active practice during three of the five years preceding the injury.¹⁹ The court established that once the expert received a medical degree and began his residency, the clock started on "active practice" in his specialty for purposes of the statute.²⁰

Turning to licensing, the court interpreted O.C.G.A. § 24-9-67.1(c)'s requirement of licensure "by an appropriate regulatory agency to practice . . . in the state in which such expert was practicing . . . in the

12. See, e.g., Alfred R. Politzer, Georgia's Codification of Daubert: Narrowing the Admissibility of Novel Scientific Evidence in Georgia?, 23 Ga. St. U.L. Rev. 481, 487-88 (2006) (discussing the concern that judges face when presented with "novel scientific evidence"); Roger C. Park et al., Evidence Law: A Student's Guide to the Law of

Evidence as Applied in American Trials 516 (2d ed. 2004) (discussing whether "junk science" would be recognized in courts).

13. O.C.G.A. § 24-9-67.1 (2010).

14. Ga. S. Bill 3, § 7, Reg. Sess., 2005 Ga. Laws 1 (codified at O.C.G.A. § 24 9-67.1).

15. O.C.G.A. § 24-9-67.1(c)(1).

16. Id. § 24-9-67.1(c)(2)(A).

17. 301 Ga. App. 181, 687 S.E.2d 198 (2009).

18. Id. at 181-82, 687 S.E.2d at 199.

19. Id. at 185-86, 187, 687 S.E.2d at 202-03.

20. Id. at 185, 687 S.E.2d at 202 (internal quotation marks omitted).

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profession" at the time of the alleged negligence²¹ to mean that the expert "must be licensed and practicing (or teaching) in one ofthe states of the united States at the time the alleged negligent act occurred."²² Thus, no longer will parties be able to use experts licensed only in Canada or Europe. Furthermore, where an expert is licensed at the time of trial is immaterial.

B. Reliable Principles and Methods

A qualified expert's testimony must also meet reliability criteria.²³ The code provision, as recently amended by the Georgia Supreme Court, requires proffered expert testimony to be based on reliable principles and methods reliably applied to the facts of the case.²⁴

The court of appeals recently applied the statute outside of the realm of the medical malpractice case. In Giannotti v. Beleza Hair Salon, Inc.,²⁵ a hair salon patron claimed that a stylist negligently performed hair-coloring procedures, causing chemical burns.²⁶ On appeal, the court affirmed the exclusion of expert testimony on effects of hair-coloring products on the following bases: the plaintiff's expert did not perform tests using the same twenty-volume peroxide used by the defendant; the peroxide used in the expert's tests was a different brand than that used by the defendant; and the heat source used in the tests differed from that used by the defendant.²⁷ The court also noted that the expert did not conduct any tests related to the effect ofhair products on human hair or skin.²⁸ Therefore, the court reasoned that the expert had not reliably applied his methods to the facts of the case.²⁹

C. The Expert's Personal...