GSB Vol. 11, No. 2 - #1. Georgia's New Expert Witness Rule: Daubert & More.

AuthorBy Robert E. Shields and Leslie J. Bryan

Georgia Bar Journal

Volume 11.

GSB Vol. 11, No. 2 - #1.

Georgia's New Expert Witness Rule: Daubert & More

Georgia State Bar JournalVol. 11, No. 2, October 2005"Georgia's New Expert Witness Rule: Daubert & More"By Robert E. Shields and Leslie J. BryanThe 2005 Georgia Legislature adopted a far-reaching tort reform package. In one broad piece of legislation, the General Assembly:

* Abolished Georgia's long history of joint and several liability;1

* Changed Georgia's venue provisions;2

* Added criteria to the required O.C.G.A. 9-11-9.1 affidavit for plaintiffs asserting claims for professional negligence;3

* Forced medical malpractice plaintiffs to relinquish federally-protected rights under the Health Insurance Portability and Accountability Act of 1996;4

* Adopted a confusing offer of judgment provision;5

* Altered the evidentiary rule concerning the admissibility of statements against interest;6 and

* Created a new rule on the admissibility of expert testimony loosely based on the federal Daubert rule.7

It is this last provision that is the subject of this paper.

The Development of the Daubert Rule

The so-called "Daubert rule" refers, loosely, to four United States Supreme Court opinions: Daubert v. Merrell Dow Pharmaceuticals, Inc.,8 General Electric Co. v. Joiner,9 Kumho Tire Co. v. Carmichael,10 and Weisgram v. Marley Co.11 These four cases, and literally thousands of lower court decisions citing them,12 establish the basis for admitting expert testimony in the federal courts. The facts in Daubert v. Merrell Dow were simple. The plaintiffs alleged that the ingestion of the anti-nausea drug Benedectin during pregnancy caused birth defects. At issue was the standard for ruling testimony, holding that the experts' opinions were not "sufficiently established to have general acceptance." 13 The United States Court of Appeals for the Ninth Circuit affirmed.14 The United States Supreme Court granted certiorari to resolve a split in the circuits. Like the facts, the Court's holding was simple, but its impact has been enormous. In Daubert, the Supreme Court held that, because of the adoption of the Federal Rules of Evidence, the standard for determining the admissibility of scientific opinion evidence could no longer be the "general acceptance" test that originated in Frye v. United States15 because Rule 702 of the Federal Rules of Evidence supplanted Frye with a more "flexible" approach.16 This more flexible approach is sometimes referred to as the scientific reliability test. The trial judge, as the "gatekeeper" of the admissibility of evidence, should determine whether expert testimony is scientifically reliable and "fits" the facts of the case before it can be presented to the jury. The Court's holding in Daubert was codified in 2000 by an amendment to Rule 702. Building on its opinion in Daubert, the Supreme Court ruled in Joiner that review of a trial judge's rulings on expert evidence would be limited to an abuse of discretion standard. In Kumho Tire, the Court broadened the reach of Daubert to impose the new evidentiary standard on all expert testimony, and not merely to the "scientific" evidence that was at issue in Daubert and Joiner. Finally, in Weisgram, the Court ruled, basically, that litigants get one bite at the apple. Under Weisgram, federal appellate courts that reverse a trial court's admission of expert evidence can reverse and render judgment if, without the rejected evidence, the remaining record evidence is insufficient to sustain the verdict. The Daubert rule has had farreaching and unanticipated consequences in the federal courts.17 Now, the Georgia Legislature has attempted to adopt the Daubert rule18 and has replaced Georgia's historic rule on expert testimony, at least in civil cases. In this article, we discuss Georgia's historic approach to the admissibility of expert testimony, review the specific provisions of the new rule, and explore some of the concerns that have been raised because of opinions coming out of the federal courts.

The Historic Rule in Georgia and the Contrast with Daubert

The Georgia Court of Appeals and the Supreme Court of Georgia have declined to adopt the Daubert rule on several occasions. In Orkin Exterminating Co v. McIntosh, the Court of Appeals rejected the Daubert rule on the ground that it was based on the Federal Rules of Evidence, which had not been adopted by the Legislature in Georgia.19 The Court of Appeals ruled similarly in Jordan v. Georgia Power Co.20 The Court of Appeals also refused to adopt the Daubert

Rule in Norfolk Southern Railway v. Baker.21 The Supreme Court of Georgia twice granted certiorari to consider whether to adopt the Daubert rule, but in both instances, after briefing and oral argument, it ruled that certiorari was improvidently granted.22 Georgia's historic rule on the admissibility of expert testimony was much broader than either former Federal Rule 702 or Rule 702 as amended to incorporate the Daubert standard. Georgia law did not provide for the broad "gatekeeper role" described in Daubert. To the extent that prior Georgia law allowed trial judges to act as a "gatekeeper" at all, that role was appropriate only when a party attempted to introduce the results of a novel test or technique. The basis for Georgia's historic rule was O.C.G.A. 24-9-67, which provided in part, "The opinions of experts on any question of science, skill, trade or like questions shall always be admissible." Thus, the Supreme Court of Georgia repeatedly held that, provided an expert is properly qualified in the field in which he or she offers testimony and the facts relied upon are within the bounds of the evidence, whether there is a sufficient basis upon which to base an opinion goes to the weight and credibility of the testimony, not its admissibility.23 The Supreme Court of Georgia adopted an exception to the general rule in a criminal case, Harper v. State.24 In Harper, the court was asked to evaluate the standard for determining whether the results of an interview, conducted while the defendant was under the influence of truth serum, were admissible. The Court rejected the Frye rule of "counting heads" and instead held that it was proper for the trial judge to decide whether the procedure or technique in question had reached a scientific state of "verifiable certainty." This verifiable certainty test, however, did not address the admissibility of the opinions of expert witnesses generally; instead, it addressed only the admissibility of the...

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