Atlanta Injury Law Blog

It comes as no surprise that the Supreme Court of Georgia rejected constitutional challenges to the Daubert rule on expert testimony in the newly released decision of Mason v. Home Depot.  The text of the decision is copied below. I apologize for formatting errors that may appear.

It appears that Georgia attorneys representing injured people may have to give up on direct attacks on the state adoption of Daubert, and do the harder work in each case of beating defense Daubert motions and making offensive use of Daubert against defense expert. This is a grinding, expensive proposition, and it makes the transaction cost of many legitimate cases prohibitive.

Last month there was a news story about the New Jersey Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey ruling that attorney advertisements that tout listings such as the "Super Lawyers" listings violate professional responsibility rules against ads that compare lawyers’ services or create an "unjustified expectation about results."  That gave me pause, as it did the marketing folks at every big law firm in Atlanta, since the profile on my web site includes listings in the "Super Lawyers" issue of Atlanta Magazine, "Legal Elite" issue of Georgia Trend magazine, and the Bar Register of Preeminent Lawyers.

However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that,  while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that "compares the lawyer’s services with other lawyers’ services." Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison "can be factually substantiated."

The "Super Lawyers," "Legal Elite," and "Preeminent Lawyers" lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased.  While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated.  Therefore, we will continue to include those designations on the web site.

When the Georgia General Assembly passed Senate Bill 3 -- the "tort reform" conglomeration -- in February 2005, most of the legislators hadn't even read the entire bill, most of its provisions were not discussed in any detail, and hardly anyone understood it. To say it had a lot of poor draftsmanship is an understatement.  I heard one prominent Republican legislator privately describe it has having been "written with a crayon."  Since then bits and peices of the legislation have been been held unconstitutional by trial or appellate courts, and more likely meet the same fate.  Increasingly, I hear legislators who voted for it in the rush of the moment saying things like, "we went too far," "we didn't understand what was in the bill," etc. 

It will take a few years, but I predict that the problems with the bill will be largely repaired.  A cap on noneconomic damages in medical malpractice cases will likely remain, as the political support for it in the medical community is mighty strong.  However, as in California after it adopted such a cap in the 1970's, we may see a requirement for financial disclosure by insurance companies to support premium rate increases.

Likewise, the replacement of "joint and several liability" with "proportional liability" will be politically difficult to change.  However, if the problems with the new rule are explained to legislators, perhaps there could be some modification.

The Daubert rule on expert testimony is here to stay, but the version of it in the State Bar's proposed new Georgia Evidence Code makes more sense, both procedurally and substantively, than the self-contradictory scissors and paste job in S.B. 3.

The offer of judgment rule in S.B. 3 is such a miscarriage that I hardly ever hear of anyone actually using it.  I know that most of the insurance companies are afraid to use it in significant cases out of concern that it will be they rather than the plaintiffs who it will hurt.  It may take a couple of years, but I expect that a more sensible and workable version of the offer of judgment rule will be passed.

A lot of the other stuff that was included in S.B. 3 will bite the dust over the next couple of years.

A relaxed standard for determining whether expert testimony should be allowed to establish causation in a medical malpractice case has been adopted by New York's Appellate Division, 2nd Department. The judges cautioned against an overly demanding approach to expert testimony which could result in prematurely choking off valid claims. The appellate court ruled that the trial court had "too restrictively" applied the test formulated in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), for determining when expert testimony on a novel scientific issue should be permitted.

We continue to see Daubert motions in which insurance defense lawyers attempt to exclude testimony of treating physicians on routine matters of diagnosis, causation and prognosis. We haven't lost one of those motions yet, but they constitute a tremendous waste of time and resources for all involved. I would never accuse my brother lawyers of filing frivolous motions just to pad their billings, but some of these are just ludicrous.

In considering any Daubert motion, it is important to keep the whole Daubert question in perspective. In an extraordinarily complex multidistrict product liability litigation, In re Ephedra Products Liability Litigation, 393 F.Supp.2d 181 (S.D.N.Y., 2005), Judge Rakoff of the Southern District of New York observed:

Daubert was designed to exclude "junk science." It was never intended to keep from the jury the kind of evidence scientists regularly rely on in forming opinions of causality simply because such evidence is not definitive. The legal standard, after all, is preponderance of the evidence, i.e., more-probable-than-not, and that applies to causality as to any other element of a tort cause of action. Rule 702, a rule of threshold admissibility, should not be transformed into a rule for imposing a more exacting standard of causality than more-probable-than-not simply because scientific issues are involved.

It is widely accepted that a "physician may be asked to testify about the physical condition of a plaintiff, diagnosis, treatment, causes of the plaintiff's condition, or prognosis." Fed. Jud. Ctr., Reference Manual on Scientific Evidence 439 (2d Ed.). In clinical medicine, courts generally agree that under Daubert the methodology and data that diagnosing and treating physicians reasonably consider good grounds for opinions or inferences in medical practice are sufficiently reliable to form the basis of a qualified medical expert's testimony in court. See 3 WEINSTEIN & BERGER, WEINSTEIN'S EVIDENCE ¶ 703[03], p. 703-24 et seq.(Rel.47-7/93 Pub.803); 2 Graham, Handbook of Federal Evidence § 702.5 at 79 (4th ed.1996); Fenner at 1009.

In Westbury v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir 1999), the appellate court affirmed a trial court's decision to admit the opinion testimony of a treating physician, finding that the physicians' differential diagnosis based on temporal relationship between exposure and onset of symptoms - without the benefit of epidemiological studies, peer-reviewed published studies, animal studies, or laboratory data - that workplace exposure to a talcum powder caused a sinus problem. In allowing the physician's testimony, the court noted:

[T]he court should be mindful that Rule 702 was intended to liberalize the introduction of relevant expert evidence. . . . And, the court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly correct. . . . As with all other admissible evidence, expert testimony is subject to being tested by "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. . . . [W]hile precise information concerning the exposure necessary to cause specific harm to humans and exact details pertaining to the plaintiff's exposure are beneficial, such evidence is not always available, or necessary, to demonstrate that a substance is toxic to humans given substantial exposure and need not invariably provide the basis for an expert's opinion on causation.

Last fall, in Flowers v. Wal-Mart, 2005 WL 2787101, decided 10/27/05, Judge Royal in the Middle District of Georgia held:

It is significant in this case that Dr. Dicks is Mr. Flowers's treating physician, not simply an expert who makes a living providing opinion testimony or one retained for purposes of litigation to provide an opinion based on facts presumed to be in evidence. His examination and diagnosis were part of his routine activities as a doctor, which should not be subject to an extensive analysis under Daubert and Kumho Tire. Though Daubertand Rule 702 require district courts to exercise a "gatekeeper" role as to expert testimony, it is generally appropriate "to avoid unnecessary 'reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted." Kumho Tire, 526 U.S. at 152. This is just such an ordinary case in which a treating physician offers a medical opinion that a fall from a ladder onto a concrete floor aggravated a back injury.

Lawyers should not be intimidated by frivolous Daubert motions, and should not let opponents trick judges into excluding perfectly legitimate, routine medical evidence with junk motions fraudulently using the rhetoric of "junk science."

Judge Ashley Royal in the U.S. District Court for the Middle District of Georgia has made a common sense decision in response to one of those frivolous Daubert motions to exclude testimony of treating physicians. In Flowers v. Wal-Mart, 2005 WL 2787101, decided 10/27/05, Judge Royal held:

It is significant in this case that Dr. Dicks is Mr. Flowers's treating physician, not simply an expert who makes a living providing opinion testimony or one retained for purposes of litigation to provide an opinion based on facts presumed to be in evidence. His examination and diagnosis were part of his routine activities as a doctor, which should not be subject to an extensive analysis under Daubert and Kukmho Tire. Though Daubert and Rule 702 require district courts to exercise a "gatekeeper" role as to expert testimony, it is generally appropriate "to avoid unnecessary 'reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted." Kumho Tire, 526 U.S. at 152. This is just such an ordinary case in which a treating physician offers a medical opinion that a fall from a ladder onto a concrete floor aggravated a back injury.

In dealing with obstructionist defense firms billing by the hour, we have had to fight over Daubert motions challenging admissibility of ordinary testimiony of treating physicians. So far, the federal district judges before whom we have litigated in Georgia have rejected such nonsense, but we still have to fight the fight.

Psychological records from therapy sessions prepared in the course of treatment are still privileged. See Supreme Court opinion below.

Admissibility of expert testimony in both federal and state courts in Georgia is now governed by the Daubert standards. See Federal Rule of Evidence 702; O.C.G.A § 24-9-67.1 (effective 2/16/05); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed. 2d 238 (1999).

"Deference is the hallmark" of appellate review of judges' discretionary rulings on Daubert issues. Cook ex rel. Estate of Tessier v. Sheriff of Monroe, 402 F.3d 1092 (11th Cir., 2005). The Eleventh Circuit Court of Appeals affirms Daubert rulings "unless . . . the district court has made a clear error of judgment, or has applied the wrong legal standard." U.S. v. Frazier, 387 F.3d 1244, 1258 (11th Cir.2004). Trial courts have discretion in determining their approach to the reliability analysis in any given case, and must make a practical, flexible consideration of the relevant factors and the circumstances of the case. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed. 2d 238 (1999). Because a trial court is given such broad latitude in deciding the reliability of an expert opinion, it can decide the weight to give various factors in admitting expert testimony. U.S. v. Abreu, 406 F.3d 1304 (11th Cir., 2005).

At least two trial judges have declined to apply the newly enacted Daubert rules for expert witnesses retroactively. Both Judge Melody Clayton in the State Court of Cobb County (Marietta) and Judge Hermann Coolidge in the State Court of Chatham County (Savannah) reached the same conclusion. Applying the new standards for expert testimony in an old case, in which the parties have a substantial investment in trial preparation under the old rules, violates rights of due process and meaningful access to the courts.

Arguments have been raised to the effect that the enactment of Daubert standards in Senate Bill 3 is unconstitutional on grounds of violation of separation of powers, equal protection and due process. The constitutional arguments set forth below are from a brief filed by David E. Tuszynski in the case of Mason v. Home Depot, et al, in the State Court of Cobb County (Civil Action No. 97A5105-1).

Critics of Daubert see science as a contentious process, rather than a a set of universal facts deduced by logic, and argue that courts are now demanding more of individual scientists and engineers than is expected of them in their own research and practice. A synthesis of the two views of science can be achieved by recognizing that subjective assumptions and inferences can never be completely eliminated from expert testimony. As a result, expert testimony always amounts, in effect, to conditional statements. An expert's statements can be considered "reasonable" -- or likely, or beyond a reasonable doubt -- if, and only if, the assumptions and inferences made by the expert are considered reasonable, or likely.

In Scientific Misconceptions Among Daubert Gatekeepers: The Need for Reform of Expert Review Procedures, published in the Journal of Law & Contemporary Problems, Jan Beyea and Daniel Berger contend that narrow-minded interpretations of Daubert are based on a fundamental misunderstanding of science as seamless objective logic based ondefining "scientific method" as a logical pursuit exhibits the common misconception that scientists "prove" something. Absolute proof is the province of mathematicians, not scientists, and even mathematicians start from unprovable assumptions. . . .

As Georgia lawyers and judges wander into the quagmire of the Daubert Trilogy, we must look behind the curtain of the Wizard of Oz and begin to learn something of the epistomology of science. Insofar as the Daubert decision is based largely upon the Justice Brennan's summary of the Karl Popper's premise of theory-testing through falsification, we would do well to consider ideas of those philosophers of science who disagree with Popper.

In The Structure of Scientific Revolutions, Thomas Kuhn took issue with Popper's premise of theory-testing through falsification. According to Kuhn, it is the incompleteness and imperfection of the existing data-theory fit that define the puzzles that characterize normal science. If, as Popper suggested, failure to fit were grounds for theory rejection, all theories would be rejected at all times.

For years Georgia lawyers practicing primarily in state rather than federal courts were able to avoid the budensome, expensive and sometimes absurd requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc.,509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny. Now, however, the dam has broken and all civil cases involving expert testimony in Georgia courts are subject to Daubert.

Therefore, it is necessary to prepare cases from the beginning with a plan to fulfill all the Daubert requirements. That advance planning will both increase the chance of the court admitting the expert's opinions and bolster the expert testimony so as to make it more persuasive to a jury.

Beginning with Chief Justice Rehnquist's dissent in Daubert, there has been concern about trying to turn trial judges into "amateur scientists" despite their lack of preparation for evaluating scientific theories, methodology, and the social and institutional context in which the work of science is performed. Clearly, trial lawyers and judges must learn enough about science to avoid being duped by either "junk science" or those who would exclude legitimate expert testimony on the basis of inappropriate criteria.

In an article in Boston College Law Review, David S. Caudill and Lewis H. LaRue emphasize that trial judges who fail to appreciate the social, institutional, and rhetorical aspects of science tend to reject reliable — albeit pragmatic — science, welcome unreliable — albeit authoritative — science, and thereby create a body of legal science that is out of sync with mainstream science. See Why Judges Applying the Daubert Trilogy Need to Know About the Social, Institutional, and Rhetorical -- and Not Just the Methodological --
Aspects of Science.

Georgia's tort reform bill (SB 3, effective in all pending cases effective 2/16/05) includes the adoption of Federal Rule of Evidence 702 regarding expert testimony, in civil cases only. Some have observed that "junk science" is now good enough to support capital punishment in Georgia, but not good enough to require an insurance company to part with cash.

There was virtually no discussion of this portion of SB 3 in either committees or on the floor of either house of the General Assembly. It appeared that hardly anyone in the legislature understood it well or gave it much thought. It was simply part of the tort reform package that the Chamber of Commerce lobbyists presented. Genuine debate, deliberation, discussion, amendments and calm reflection of consequences were not to be tolerated. When the chairman of the House Judiciary Committee proposed to break up the tort reform proposals into separate bills, to be considered each on their own merits, the bill was removed from the Judiciary Committee and placed in a special tort reform committee.

The statute expressly references the Daubert, Joiner and Kumho Tire cases in the U.S. Supreme Court, and directs that "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."