Verdict - Winter 2012 - (Page 22)
BY JAROME E. GAUTREAUX
ost plaintiff’s lawyers believe that dealing with attempts to exclude experts is about as much fun as having a ﬂaming stick thrust in their eye. Many times these motions seem to lack real merit. Nonetheless, because they are so common, plaintiff’s lawyers will likely be dealing with these motions to exclude
experts on a regular basis for years to come.
This article will summarize the current state of the Georgia rules on expert testimony in civil cases. The appendix collects the cases decided since the adoption, in 2005, of the Daubert rules governing testimony of expert witnesses. The rules governing expert testimony in civil cases can be divided into three main areas: (1) Qualiﬁcations of experts; (2) Facts and data relied upon for expert opinion; and (3) Reliability and Relevance of expert opinion testimony.
General Rule for Civil Cases The basic qualiﬁcations for expert witnesses are that the expert must have sufﬁcient “knowledge, skill, experience, training or education . . . .” in the relevant ﬁeld in which he is offering an opinion. O.C.G.A. § 24-9-67.1(b). This is a fairly liberal standard, and the trial court’s determination that a particular witness qualiﬁes as an expert is a discretionary decision, that will not be overturned absent an abuse of discretion.1 There is no general requirement that the expert be licensed in the relevant ﬁeld, except in the realm of professional malpractice cases, which are addressed below. However, the courts do sometimes impose fairly strict limits on expert testimony so as to ensure that an expert does not stray outside her ﬁeld of expertise. For example, a biomechanical expert who testiﬁed that a particular automobile wreck caused a spinal injury was held to have exceeded the scope of his expertise when he sought to explain how the various mechanical forces produced a particular injury in a person involved in the wreck.2 The Court of Appeals upheld the trial court’s exclusion of the part of this expert’s opinion that dealt with how the individual’s injuries were related to the wreck, though the expert would have been permitted to discuss the various forces involved in the wreck.
22 Georgia Trial Lawyers Association
Professional Malpractice and Medical Malpractice Cases Georgia has adopted more stringent standards for qualifying expert witnesses in professional malpractice and medical malpractice actions. These new standards are codiﬁed at O.C.G.A. § 24-9-67.1. Sometimes, the new standards for the qualiﬁcations of experts in medical negligence cases are referred to as “SuperDaubert” requirements. The new standard encompasses several separate elements. Licensure: The expert witness in a medical malpractice case — and other professional negligence cases — must be licensed by an appropriate regulatory agency to practice in the state in which the expert was practicing or teaching at the time of the alleged negligent act or omission.3 This licensure requirement is not limited to medical malpractice cases. Active Practice or Teaching – Medical Malpractice Actions: In addition to the licensure requirement, O.C.G.A. § 24-9-67.1(c)(2) requires in medical malpractice actions that the expert have “actual professional knowledge and experience in the area or specialty in which the opinion is to be given .” Practice: There are two speciﬁc ways that the statute provides for an expert to gain the requisite “professional knowledge and experience.” First, the expert can practice in the area of specialty of her profession for at least three of the last ﬁve years, with sufﬁcient frequency to establish an appropriate level of knowledge, in performing the procedure, diagnosing the condition, or rendering the treatment alleged to have been negligently performed or rendered. This does not require that the defendant and the expert have the same subspecialty designations, but rather that the expert have relevant experience with the acts or omissions at issue in the action. For example, a vascular surgeon was allowed to testify that an orthopedic surgeon violated the standard of care because the allegation of negligence involved a vascular issue with which the expert had the requisite knowledge and experience.4 So it should
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