Sometimes clients are hesitant to attempt to exclude plaintiff’s testifying experts because they believe the probability of excluding the expert is low.
Sometimes clients are hesitant to attempt to exclude plaintiff’s testifying experts because they believe the probability of excluding the expert is low. This reasoning has some justification because ’s relatively new expert witness statute, O.C.G.A. § 24-9-67.1 which was enacted in 2005, does not have very many appellate decisions to provide guidance to the trial courts. This has led to the perception that some trial court’s may not understand or may not want to deal with Daubert, or may not want to part with the old ways where just about anyone could be qualified as an expert.
However, there are many resources to assist defense counsel when attacking a plaintiff’s testifying expert, including the website titled: Daubert on the Web, which is located at www.daubertontheweb.com. These resources provide varied information including, federal and state appellate decisions by fields of expertise (i.e accident reconstructionist, dentist, engineers, economists and accountants and physicians), and specific tactics to utilize. Interestingly, a reveal of these resources reveal that there are several different groups of experts whose admissibility is rate is lower than expected. Specifically, accountants/economist (60% admissibility), fire experts (49% admissibility), physicians (46% admissibility), engineers (39% admissibility), accident reconstructionists (39% admissibility), psychologists/psychiatrists (37% admissibility), and nurses (33% admissibility). With these low admissibility rates, the next question becomes how do I go about excluding an expert in my case. The potential answer is below.
Georgia’s Standard For The Admissibility Of Expert Testimony
O.C.G.A. § 24-9-67.1 addresses the admissibility of expert testimony. O.C.G.A. § 24-9-67.1(b) states:
If scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action 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 a form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial;
(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.
Because O.C.G.A. § 24-9-67.1 is a relatively new statute and almost identical to Fed. R. Evid. 702,Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its prodigy provide guidance for Georgia Court’s as to the admissibility of the testimony provided by an expert witness. The trial court’s ability to rely on Daubert and other federal court decisions is specifically authorized by O.C.G.A. § 24-9-67.1(f). It states, “it is the intent of the legislature that, in all civil cases, . . . the courts of this state may draw from the opinions of the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. . . . ; and all other cases in federal courts applying the standards announced by the U.S. Supreme Court in these cases.”.
In Daubert, the U.S. Supreme Court placed limits on the admissibility of scientific evidence when it ordered federal trial court judges to become “gatekeepers” of scientific evidence. 509 at 589, 592-594. As “gatekeepers”, the trial courts are assigned the task of evaluating proffered expert witness testimony to determine whether the testimony both rests on a reliable foundation and is relevant to the task at hand. at 597. To determine if the testimony is relevant, the trial court must determine whether the expert’s opinions fit the facts of the case. at 591. (emphasis added). To determine reliability, the trial court must determine whether the expert testimony’s underlying reasoning or methodology is scientifically valid and can be applied to the facts at issue. at 592. Many considerations will bear on the inquiry, including (1) whether the theory or technique in question can be or has been tested, (2) whether it has been subjected to peer review and publication, (3) its known or potential error rate, and (4) whether it has attracted widespread acceptance within the scientific community. at 593-94.
The trial court’s inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. at 594-95. “A key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. ‘Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.’” at 593. (emphasis added). The court stated that “the required procedure for the court is not the same as that for considering a motion for summary judgment in which the evidence is to be considered in the light most favorable to the non-moving party; rather, the court is obligated to analyze the proposed evidence and exclude it if the theory or technique utilized is not sufficiently reliable in a sense of ‘scientific validity’ (‘grounded in the methods and procedures of science’) so as to be cable of assisting the fact finder.” at 590. (emphasis added).
In Kumho Tire v. Carmichael, 526 U.S. 137 (1999), a case originating in the Eleventh Circuit, the U.S. Supreme Court disposed of the notion that Daubert’s gatekeeping principles extend only to scientific testimony. The court concluded that Daubert’s general holding setting forth the trial judge’s general gatekeeping obligation applies to all expert testimony, whether it is based on scientific, technical or other specialized knowledge. at 141. (emphasis added).
The court stated that the purpose of Daubert’s gatekeeping requirement is to undertake whatever inquiry is necessary to “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” at 152. The court concluded “that Daubert’s general principles apply to the expert matters described in Rule 702. The Rule, in respect to all such matters, ‘establishes a standard of evidentiary reliability’. It ‘requires a valid connection to the pertinent inquiry as a pre-condition to admissibility’. Where such testimony’s factual basis, data, principles, methods or their applications are called sufficiently into question, the trial judge must determine whether the testimony has ‘a reliable basis in the knowledge and experience of the relevant discipline.’ at 149 (citing Daubert, 509 at 590, 592). (emphasis added). The court further concluded that a trial judge may consider more then the four factors set forth in Daubert. at 153. While the Kumho Tire court did not list any new factors, it stated that factors bearing on a reliability determination should be flexible and may vary depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony. at 150.
A review of cases challenging the admissibility of expert witnesses reveals there are recurring themes which generally run through cases upholding the exclusion of expert testimony. While not exhaustive, these themes are:
(1) The record lacks sufficient facts or data to support the conclusion reached by the excluded expert;
(2) The excluded expert testimony relies on a novel testing methodology (i.e. one not generally accepted in the scientific community) or implies that their training, skill and/or experience is sufficient enough to reach their conclusions but do not have a verifiable way for others to reach the same conclusions; further, the excluded opinion, which was primarily based upon the training, skill and/or experience of the expert, was typically based upon the expert’s subjective visual inspection of an item or photographs; and
(3) The excluded expert’s theories were not properly applied to the facts of the case. In reaching their conclusions, the expert ignored or disregarded pertinent facts thereby creating a doubt as to the overall reliability of their opinions which ultimately rendered the opinions inadmissible.
Focusing on these themes should assist in the determination of whether to challenge the admissibility of Plaintiff’s expert witness. These themes may also help persuade the trial or appellate courts to rule in your favor.
’s expert witness statute and other resources appear to make it easier to exclude Plaintiff’s expert witness, if the facts and/or circumstances warrant exclusion. The key is to attack the testifying expert’s methods, the facts and data upon which the testifying expert bases his/her conclusions and/or the expert’s application of facts to their theory. If a motion to exclude Plaintiff’s expert is filed contemporaneously with a motion for summary judgment, it may put pressure on Plaintiff to take a more reasonable settlement posture because, if Plaintiff’s expert is excluded, his/her chance of prevailing at trial may significantly diminish.