Daubert v. Merrell Dow Pharmaceuticals was a U.S. Supreme Court decision in 1993 that led to a sea change in standards for admitting expert testimony into evidence. Setting out a set of factors to be considered by courts in such decisions, it spread from questions of cutting edge science to the most mundane forms of expertise. 

The Daubert factors include consideration of whether the theory or technique can be and has been tested, whether the theory or technique has been subjected to peer review and publication, the potential rate of error, and general acceptance in the relevant scientific community.

Many federal courts and some state courts around the country have applied Daubert and its progeny in a draconian manner, often to the extreme prejudice of whoever happens to be the "little guy" in the case.  As trial courts are allowed broad discretion in those rulings, plaintiffs are often subject to the virtually unfettered discretion of one judge. Some have applied the Daubert factors in a manner almost obsessively hostile to plaintiffs.

As part of the tort reform legislation passed four years ago, Daubert was imported into Georgia law in OCGA § 24-9-67.1, with some vague direction to look to the way it has been applied in other jurisdictions.

This week, the Georgia Court of Appeals held that it was an abuse of discretion to exclude the testimony of an engineering expert in a highway construction zone accident case, and reversible error to then grant summary judgment due to exclusion of the expert.

A few nuggets from the decision:

– inquiry into an expert’s credentials cannot be based on a rigid set of factors.

– while the Daubert factors may bear on a judge’s determination regarding the admissibility of an engineering expert’s testimony, those factors “may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.”

– “ ‘[D]isputes as to an expert’s credentials are properly explored through cross-examination at trial and go to the weight and credibility of the testimony, not its admissibility.’ “ 

– “The weight given to expert testimony in negligence cases is for the trier of fact who can, but is not required to give it controlling influence."

See Hamilton-King v. HNTB Georgia, Inc.,  2009 WL 737044 (Ga.App.,2009).