Georgia's Codification of Daubert: Narrowing the Admissibility of Novel Scientific Evidence in Georgia?

• Publication year: 2010

Georgia State University Law Review

Volume 23 , ,

Article 1

Issue 2 Winter 2006

12-1-2006

Georgia's Codification of Daubert: Narrowing the Admissibility of Novel Scientific Evidence in Georgia?

Alfred R. Politzer

Follow this and additional works at: http://digitalarchlve.gsu.edu/gsulr Part of the Law Commons

Recommended Citation

Politzer, Alfred R. (2006) "Georgia's Codification of Daubert: Narrowing the Admissibility of Novel Scientific Evidence in Georgia?," Georgia State University Law Review: Vol. 23: Iss. 2, Article 1. Available at: http://digitalarchive.gsu.edu/gsulr/vol23/iss2/!

This Article is brought to you for free and open access by the College of Law Publications at Digital Archive @ GSU. It has been accepted for inclusion in Georgia State University Law Review by an authorized administrator of Digital Archive @ GSU. For more information, please contact digitalarchive@gsu.edu.

GEORGIA'S CODIFICATION OF DAUBERT: NARROWING THE ADMISSIBILITY OF NOVEL SCIENTIFIC EVIDENCE IN GEORGIA?

Introduction

Trial courts increasingly face the challenge of determining when novel scientific evidence "has passed from the stage of scientific doubt and inquiry" to an admissible "stage of scientific reliability."¹ The federal and Georgia standards of admissibility for novel scientific evidence are similar in that they each require a direct showing, although to a different degree, that the evidence is scientifically reliable. Federal courts utilize the Daubert standard of relevance and reliability to determine whether novel scientific evidence is admissible. Prior to the codification of Daubert in Georgia, Georgia courts used the Harper "verifiable certainty" standard, which assigns a basic gatekeeping role for trial judges to determine whether novel scientific evidence is admissible.⁴

However, Georgia courts generally maintain a liberal standard in admitting expert testimony.⁵ Even Georgia's stricter Harper standard for admitting scientific evidence is more lenient than the federal Daubert standard.⁶ Georgia's legislature addressed this discrepancy in the recently enacted statute governing expert testimony in civil

1. Paul S. Milich, Georgia Rules of Evidence § 15.9 (2d ed., West Group 2002) [hereinafter Georgia Rules].

2. See Paul S. Milich, Courtroom Handbook on Georgia Evidence 169-70 (2005 ed., Thomson/West) [hereinafter georgia handbook]. See generally infra Part IV.B-C. (comparing the standards' reliability analyses).

3. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993) aff'dby 951 F.2d 1128 (9th Cir. 1991), superceded by rule, Fed. R. Evid. 702, as recognized in United States v. Parra, 402 F.3d 752 (7th Cir. 2005).

4. Harper v. State, 292 S.E.2d 389, 395 (Ga. 1982) (requiring a relatively higher level of scrutiny when determining the admissibility of scientific evidence); Georgia RULES, supra note 1, at § 15.9.

5. GEORGIA Rules, supra note 1 at § 15.4; see also Barrow v. State, 221 S.E.2d 416, 419 (Ga. 1975) (providing that the opinions of experts are admissible "on any question of science, skill, trade, or like questions").

6. See Mary Donne Peters, The New Rules Regarding Admissibility of Expert Testimony in Georgia, in THE NEW RULES REGARDING ADMISSIBILITY of EXPERT TESTIMONY rN GEORGIA, PROGRAM MATERIALS § 1.3 (Institute of Continuing Legal Education in Georgia, May 6, 2005) (discussing how the verifiable certainty test is more lenient than the Daubert reliability test).

481

482 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 23:481

cases, Code section 24-9-67.1,⁷ by stating its intent that Georgia civil

ft_

courts exclude expert evidence inadmissible in other states. The new statute, effective February 16, 2005, codified the Daubert standard in civil cases.⁹

On October 25, 2005, the Georgia Court of Appeals applied the new statute and the Daubert standard for the first time when it held that expert testimony regarding a relatively novel mathematical methodology was properly excluded.¹⁰ The court did not mention Georgia's 23-year-old Harper standard for scientific evidence—or the state's very liberal and much older common law general expert testimony standard—even though it had refused to apply the Daubert standard as recently as February 3, 2005.¹¹ The new statute thus presents a new issue for the Georgia Supreme Court with the potential to significantly impact the standard of admissibility for novel scientific evidence in Georgia.

This Note contends that Georgia's codification of Daubert narrows the admissibility of novel scientific evidence in Georgia by affirming the higher threshold of admissibility for scientific evidence previously imposed by the state's courts, adding additional requirements to that standard, and encouraging courts to apply the standard in conformity with the more stringent federal standard.¹³ First, the Note argues that Code section 24-9-67.1 reinforces the

7. O.C.G.A. § 24-9-67.1 (2005).

8. O.C.G.A. § 24-9-67.1(0 (2005) ("It is the intent of the legislature that, in all civil cases, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states.'*).

9. O.C.G.A. § 24-9-67.1 (providing that Georgia courts may draw from Daubert (O.C.G.A. § 24-9-67.1(f)), and adopting almost verbatim Fed. r. Evid. 702 (O.C.G.A. § 24-9-67.1(b)(l)-(3))-

10. Moran v. Kia Motors America, Inc., 622 S.E.2d 439, 441 (Ga. Ct. App. 2005) (applying the Daubert standard's reliability factors and O.C.G.A. 24-9-67.1 in finding expert testimony unreliable).

11. See id at 440-42; Dailey v. State, 610 S.E.2d 126, 129 (Ga. Ct. App. 2005) (refusing a party's request for the court to apply Daubert; stating, "Indeed, we have been consistent in declining to apply the Daubert standard").

12. See James W. Standard, Jr., What Every Defense (or Plaintiff's) Lawyer Needs to Know About Daubert, in the new rules regarding admissibility of expert testimony in georgia,

Program Materials § VIII, 22 (Institute of Continuing Legal Education in Georgia, May 6, 2005) (discussing how Georgia's enactment of O.C.G.A. § 24-9-67.1 is expected to significantly change the way in which state courts view the reliability and admissibility of expert testimony).

13. See infra Part IV.

2006] GEORGIA'S CODIFICATION OF daubert 483

state's existing common law standard by making clear the legislature's intent for a stricter standard of admissibility for scientific evidence.¹⁴ Second, it suggests that because the common law Harper standard is more liberal than the Daubert standard, any level of application of Daubert by state courts will result in Georgia's standard of admissibility becoming more stringent.¹⁵ Third, it predicts that Georgia courts may apply the Daubert standard in a similar fashion to the Eleventh Circuit, which would result in a full application of the stricter Daubert standard, without the current limitations that exist when courts apply the Harper standard.¹⁶

Part I of this Note summarizes the federal standard of admissibility

1 7

for expert testimony, concentrating on novel scientific evidence. Part II analyzes the former standard of admissibility for expert

18

testimony in Georgia, emphasizing novel scientific evidence. Part III examines the Georgia legislature's codification of Daubert in Code section 24-9-67.1.¹⁹ Part IV considers the newly enacted statute's potential impact on the standard of admissibility for novel scientific evidence in Georgia. Finally, Part V discusses the potential implications of a narrower standard of admissibility for novel scientific evidence in Georgia.²¹

I. The Federal Standard of Admissibility for Expert Testimony Generally

The current federal standard for the admissibility of expert witness testimony is set forth in Federal Rules of Evidence 702 and 703 and a trilogy of Supreme Court decisions: Daubert v. Merrell Dow Pharmaceuticals, Inc., General Electric Co. v. Joiner, and Kumho

14. See infra Part IV. A.

15. See infra Part IV.B.

16. See infra Part IV.C.

17. See infra Part I.

18. See infra ?BTi\\.

19. See infra Part III.

20. See infra Part IV.

21. See infra Part V.

484

GEORGIA STATE UNIVERSITY LAW REVIEW

[Vol. 23:481

Tire Co. v. CarmichaeL Under federal law, "the admissibility of expert testimony is determined by the trial court," which evaluates whether it is relevant and assists the trier of fact. Additionally, the expert must be sufficiently qualified to offer the intended testimony and the testimony itself must be "sufficiently reliable."²⁴ Federal Rule of Evidence 702's "helpfulness" requirement that expert testimony assist the trier of fact "implicitly contains the proposition that expert testimony which is based on unreliable methodology is unhelpful and therefore excludible."²⁵ Even if the expert testimony is admissible, the judge must decide whether "its probative value is substantially outweighed by the danger of unfair prejudice" before allowing it to be presented to the jury, because it ultimately determines the weight

Oft

and evaluation given to admitted expert testimony.

22. Fed. R. Evid. 702. The foil text of Rule 702 is as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Id. Fed. R. Evid. 703. The foil text of Rule 703 is as follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not...