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.
In the Supreme Court of Georgia
Decided: March 10, 2008
S07A1486. MASON et al. v. HOME DEPOT U.S.A., INC. et al.
BENHAM, Justice.
Arvin Ritchey Mason and Claudia Mason (hereinafter, the Masons)
sued The Home Depot U.S.A., Inc. and The Flecto Company, Inc. in 1997
for injuries Arvin Mason allegedly received in 1996 while using Varathane, a
floor covering product manufactured by Flecto and sold by Home Depot, and
for Claudia Mason’s resulting loss of consortium. Shortly before the case
went to trial in February 2005, the Georgia General Assembly enacted the
Tort Reform Act of 2005 (hereinafter TRA), including OCGA § 24-9-67.1,1
(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.
…
(f) It is 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. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of
the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal courts applying the standards announced by the
United States Supreme Court in these cases.
which governs the qualification of expert witnesses and the admissibility of
expert testimony. Based on the new statute, the defense filed a motion to
exclude the testimony of two expert witnesses for the plaintiffs, Dr. Grace
Ziem and Dr. Ronald Huggins. The trial court denied the motion, holding
that application of the new statute after years of discovery under pre-existing
rules governing expert witnesses would violate the Georgia Constitution’s
proscription against retroactive laws. After a mistrial, the defense renewed
their motion to exclude the testimony of the two experts, in response to
which the Masons mounted attacks on the constitutionality of OCGA § 24-9-
67.1. The trial court rejected the Masons’ contentions the statute denied
equal protection, violated the constitutional guarantee of trial by jury, and
violated the prohibition against retroactive law, but found a portion of
subsection (b) (1) to deny due process because it contradicts part of
subsection (a), and cured the problem by excising part of subsection (b) (1)
and found subsection (f) violative of the principle of separation of powers,
but cured that defect by severing subsection (f) from the statute. The trial
3
court entered a second order applying the statute to exclude the testimony of
the two experts. This appeal is from those two orders.
1. The Masons contend the statute violates the guarantees of equal
protection of the laws found in the constitutions of the United States and
Georgia. Specifically, they contend that because the statute imposes more
stringent requirements for the admission of expert testimony in their tort
action than applicable statutes would in criminal cases and in civil
condemnation cases, they are disadvantaged in comparison to the parties in
those types of cases.
Standing to challenge a statute on constitutional grounds in Georgia
depends on a showing the plaintiff was injured in some way by the operation
of the statute or that the statute has an adverse impact on the plaintiff’s rights.
Tennille v. State, 279 Ga. 884, 885 (622 SE2d 346) (2005); Agan v. State,
272 Ga. 540 (1) (533 SE2d 60) (2000); State of Ga. v. Jackson, 269 Ga. 308
(1) (496 SE2d 912) (1998); Ambles v. State, 259 Ga. 406 (1) (383 SE2d 555) (1989). The Masons showed how application of the stricter standards of
OCGA § 24-9-67.1 places them at a disadvantage compared to parties in
criminal cases, in which the admissibility of expert testimony is governed by
the less strict standard of OCGA § 24-9-67 (“In criminal cases, the opinions
of experts on any question of science, skill, trade, or like questions shall
always be admissible; and such opinions may be given on the facts as proved by other witnesses.”), and in civil condemnation actions, which are exempted from the requirements of the statute by OCGA § 22-1-14 (b), thereby
To the extent the Masons’ argument on equal protection concerns how criminal defendants are disadvantaged by the TRA, they lack standing to make that argument because they are not criminal defendants. “A party will not be heard to complain of the violation of another person’s constitutional rights.” Sims v. State, 243 Ga. 83 (2) (252 SE2d 501) (1979).
For the same reason, the similar arguments made in several briefs filed by amici curiae are of no aid to the Masons. establishing their appellate standing to assert a claim of denial of equal protection of the law.
One challenging a statute on equal protection grounds must initially
establish that he is similarly situated to members of the class who are treated
differently from him. Quarterman v. State, 282 Ga. 383, 384 (fn. 4) (651
SE2d 32) (2007). The Masons, therefore, bear the burden of showing that
they are situated similarly to persons whom they allege are treated differently
with regard to the admissibility of expert opinion testimony than they. Our
review of the record and of Georgia law persuades us the Masons cannot
shoulder that burden.
“[T]he equal protection clause [does not] exact uniformity of
procedure. The Legislature may classify litigation and adopt one type of
procedure for one class and a different type for another.” Dohany v. Rogers,
281 U.S. 362, 369 (50 SC 299, 74 LE 904) (1930). Georgia’s jurisprudence
is in line with that quoted above since, far from considering all litigants to be
similarly situated, this Court has consistently rejected the argument that all
criminal defendants are similarly situated to each other and that all civil
litigants are similarly situated to each other for purposes of evidentiary
issues. “When considering an equal protection challenge in criminal matters,
individuals are ‘similarly situated’ only if they are charged with the same
crime or crimes.” Woodard v. State, 269 Ga. 317 (3) (496 SE2d 896) (1998)
(1995 amendment to Child Hearsay Statute unconstitutional because it
created disparate categories of identically situated defendants charged with
molestation, some of whom must defend against more evidence than others).
See also Sims v. State, 260 Ga. 782 (1) (399 SE2d 924) (1991) (statute which applies equally to all persons accused of child molestation does not create disparate classifications among similarly situated persons). In Bell v. Austin, 278 Ga. 844 (2a) (607 SE2d 569) (2005), this Court rejected an equal
protection challenge to OCGA § 24-3-18 (a), which creates a hearsay
exception applicable in “the trial of any civil case involving injury or
disease,” observing that the plaintiff could not show he was treated
differently than similarly situated persons because he was “treated no
differently than any other party in a civil action involving injury or disease
….” Thus, just as defendants in criminal cases are situated similarly only to
others charged with the same offense, civil litigants are considered similarly
situated only to others litigating the same cause of action.
While we have not previously been called upon to decide specifically
whether civil law litigants are similarly situated to criminal litigants, we note
that procedure in civil cases is governed by the Civil Procedure Act while
procedure in criminal cases is governed by the provisions of Title 17 of the
Official Code of Georgia, thus establishing a separation between the two
spheres of litigation. We held in Sims v. State, supra, 260 Ga. at 783, that the
defendant, charged with child molestation, had not shown “that child
molesters are similarly situated to all other criminals or to civil litigants.”
(Emphasis supplied.) From the foregoing, we conclude that, for purposes of
evidentiary standards, only those accused of the same offense are similarly
situated in the criminal law arena, only those asserting or defending against
the same cause of action are similarly situated in the civil law arena, and the
parties to civil cases are not similarly situated to those engaged in criminal
prosecutions.
Thus, the Masons cannot establish the necessary element of an equal
protection claim that they are situated similarly to those being treated
differently. That being so, we need not pursue the equal protection issue past
that point. Quarterman v. State, supra. “The person who is asserting the
equal protection claim has the burden to establish that he is similarly situated
to members of the class who are treated differently from him. If the person
asserting the violation cannot make the foregoing showing, there is no need
to continue with an equal protection analysis.” Rodriguez v. State, 275 Ga.
283 (1) (565 SE2d 458) (2002) (citations and punctuation omitted). The trial
court did not err in rejecting the Masons’ equal protection challenge.
2. The Masons contend that OCGA § 24-9-67.1 violates due process
because subsections (a) and (b) (1) are contradictory and, therefore, the
entire statute should be stricken. The trial court agreed the subsections were
contradictory; however, instead of striking the statute in its entirety, the trial
3The trial court severed the phrase “which or will be admitted into evidence at the hearing at trial” from OCGA § 24-9-67.1 (b) (1).
court severed the contradictory language from subsection (b) (1)3 and then
proceeded to apply the revised statute, ultimately ruling that the Masons’
experts were precluded from testifying under subsection (b) (2). Appellees
contend that the Masons lack standing to challenge the constitutionality of
these two provisions because the trial court excluded their expert under
subsection (b) (2). We disagree. The Masons have appellate standing
because they were harmed by the trial court’s decision not to strike OCGA §
24-9-67.1 in its entirety, thereby enabling the trial court to exclude the
Masons’ experts under subsection (b) (2).
As to the underlying merits of the Masons’ constitutional challenges,
the trial court was correct in finding that subsection (a) and subsection (b) (1)
are contradictory. Specifically, subsection (b) (1) limits experts to relying on
potentially admissible facts and data, whereas subsection (a) plainly states
that facts and data relied upon need not be admissible. The two provisions
cannot be harmonized and, read together, they render the statute
unconstitutionally vague. The trial court, however, was not required to strike
the statute in its entirety because we have held that invalid portions may be
severed if, as here, they are not mutually dependent on the remaining
portions and legislative intent is not compromised. Union City Bd. of Zoning
Appeals v. Justice Outdoor Displays, Inc., 266 Ga. 393, 403 (7) (467 SE2d
875) (1996) (“When a statute cannot be sustained as a whole, the courts will
uphold it in part when it is reasonably certain that to do so will correspond
with the main purpose which the legislature sought to accomplish”); Nixon
v. State, 256 Ga. 261, 264 (3) (347 SE2d 592) (1986) (“Where one portion of
a statute is unconstitutional, this court has the power to sever that portion of
the statute and preserve the remainder if the remaining portion of the Act
accomplishes the purpose the legislature intended.”). Therefore, we conclude
that the trial court did not err.
3. The Masons contend OCGA § 24-9-67.1 (f) is unconstitutional as a
delegation of legislative authority and a denial of due process. Subsection (f)
contains two sentences, the first of which is an expression of intent 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.” The second
sentence suggests that Georgia courts, “in interpreting and applying this Code
section, may draw from the opinions of the United States Supreme Court in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [(113 SC 2786,
125 LE2d 469)] (1993); General Electric Co. v. Joiner, 522 U.S. 136 [(118
SC 512, 139 LE2d 508] (1997); Kumho Tire Co. Ltd. v. Carmichael, 526
U.S. 137 [(119 SC 1167, 143 LE2d 238)] (1999); and other cases in federal
courts applying the standards announced by the United States Supreme Court in these cases.”
Addressing the second sentence, the trial court agreed with the Masons
that the suggestion that Georgia courts may consider federal authority in
construing OCGA § 24-9-67.1 was a usurpation of judicial authority in that it
was “clearly an attempt by the legislature to perform a judicial function by
construing a law ….” Martin v. Baldwin, 215 Ga. 293, 299 (110 SE2d 344)
(1959). Concluding the use of the word “may” did not make the sentence
less an attempt to infringe on the province of the courts, the trial court found
that provision unconstitutional as a violation of the principle of separation of
powers. “The doctrine of separation of powers is an immutable
constitutional principle which must be strictly enforced. Under that doctrine,
statutory construction belongs to the courts, legislation to the legislature.”
Allen v. Wright, 282 Ga. 9 (1) (644 SE2d 814) (2007) (punctuation and
citation omitted).
We disagree with the trial court’s conclusion. The suggestion in the
statute that Georgia “may” consider the decisions of other courts on the
subject did not invade the province of the judiciary because it was not
couched in mandatory terms and merely stated a principle of law regularly
employed by Georgia courts. See, e.g., State v. Mayze, 280 Ga. 5, 8-9 (622
SE2d 836) (2005) (analysis by Alabama court, although not controlling, is
persuasive authority for construction of analogous constitutional and
statutory provisions); and Barnum v. Coastal Health Services, Inc., 288 Ga.
App. 209 (2b) (653 SE2d 816) (2007) (because of similarity of Georgia Civil
Practice Act to Federal Rules of Civil Procedure from which it was taken, it
is proper to consider and give weight to constructions placed on the federal
rules by federal courts). The permissive suggestion in OCGA § 24-9-67.1 (f)
that the courts consider federal interpretations of the cases on which the
4 Although this Court generally will not rule on a challenge to the constitutionality of a statute unless the issue has been raised and ruled on in the trial court (Poppell v. Gault, 278 Ga. 437 (2) (603 SE2d 271) (2004), in the interest of judicial economy we exercise our discretion to decide this question. See Campbell v. State, 268 Ga. 44 (2) (485 SE2d 185) (1997).
federal rules and OCGA § 24-9-67.1 were based contains no words of
command and, unlike the resolution condemned in Martin v. Baldwin, supra,
does not seek to enforce on the courts a particular construction of the statute.
Accordingly, we conclude the trial court was mistaken in declaring
subsection (f) unconstitutional on that ground. That conclusion does not
require reversal of the trial court’s judgment. The goal of the Masons’ attack
on subsection (f) was to have the entire statute declared unconstitutional.
Since the trial court, after finding subsection (f) unconstitutional, applied the
severability clause enacted with the statute (Ga. Laws 2005, p. 1, § 14), the
net effect on the parties was the same as the effect of our ruling: the statute
remains in effect.
Having already ruled subsection (f) unconstitutional, the trial court
declined to rule on the Masons’ contention that the first sentence of the
subsection was also unconstitutional. In the interest of judicial economy, we
will address the arguments the Masons raise on appeal.4
The Masons’ argument on this issue identifies two purported infirmities
in the first sentence of subsection (f), that it delegates to the courts of
Georgia, and ultimately to the courts and legislatures of other states, the
legislative authority to prescribe rules of evidence, and that it denies due
process of law to litigants because it has no clear guidelines on how Georgia
courts are to exercise the delegated powers. At the heart of those arguments
is the Masons’ assertion that the first sentence of subsection (f) constitutes a
command to the courts of Georgia to rewrite Georgia law anytime any other
jurisdiction announces a more strict standard for the admission of expert
testimony. That assertion is the fatal flaw in their argument because the
statement of intent in the first sentence of subsection (f) is no more than an
explication by the legislature of its goal in enacting the statute. It contains no
words of command which would invade the province of the judiciary or
would delegate to the judiciary the legislature’s duty. “It is always the duty
of a court, in construing a statute, to ascertain and give full effect to the
legislative intent ….” Moore v. Robinson, 206 Ga. 27 (6) (55 SE2d 711)
(1949). In that case, the caption of the act contained an expression by the
legislature of the act’s purpose and this Court suggested that in construing a
doubtful statute there was “no better source to which a court may go for the
purpose of finding the legislature’s meaning of an act passed by it.” Id. The
present case may contain that “better source” since the legislature has been
explicit in the body of the statute itself in stating its intent that the admission
of expert testimony in the courts of this State be governed by the strictest
standards available. We note that the Georgia Court of Appeals, in
construing OCGA § 24-9-67.1 has already recognized subsection (f) as a
statement of legislative intent. Cotten v. Phillips, 280 Ga. App. 280, 285-286
(633 SE2d 655) (2006). We conclude, therefore, that the statement of intent
in subsection (f) is not a delegation of legislative power.
4. Contending they have a vested right to application of the evidentiary
rules in effect prior to the passage of OCGA § 24-9-67.1, the Masons contend the application of the statute to their case violates the constitutional
prohibition against retroactive laws. See Ga. Const. 1983, Art. 1, Sec. 1, Par.
10. In support of that contention, they point to Fowler Properties, Inc. v.
Dowland, 282 Ga. 76 (646 SE2d 197) (2007), where this Court held the
offer-of-judgment provisions of the TRA could not be applied to actions
instituted prior to enactment of the statute. In that case, we drew a distinction
between substantive and procedural law: “substantive law creates rights,
duties, and obligations while a procedural law prescribes the methods of
enforcing those rights, duties, and obligations.” Id. at 78. “[W]here a statute
governs only procedure of the courts, including the rules of evidence, it is to
be given retroactive effect absent an expressed contrary intention.” Polito v.
Holland, 258 Ga. 54 (2) (365 SE2d 273) (1988). The Masons’ argument that
their expenditures in finding experts and developing their testimony served to
vest their right to use the experts contradicts the straightforward rule “that
there are no vested rights in any course of procedure.” Foster v. Bowen, 253
Ga. 33 (315 SE2d 656) (1984). The fact that the Masons are disadvantaged
by the statutory change does not affect application of the rule stated in
Pritchard v. Savannah St. & R. R. R. Co., 87 Ga. 294, 299 (13 SE 493)
(1891) (punctuation and citation omitted): “The presumption against a
retrospective construction has no application to enactments which affect only
the procedure and practice of the courts, even where the alteration which the
statutes make has been disadvantageous to one of the parties.” The Masons’
reliance on Jones v. Oemler, 110 Ga. 202 (35 SE 375) (1900), for the
proposition that one may obtain a vested right in an evidentiary rule is
misplaced. The issue there was whether a statute which changed the
evidentiary weight to be given to certain charts could be applied to impact the
rights a party had obtained under a lease. The holding that it could not was
based on vested rights in a property interest, not a vested right in an
evidentiary rule. No such property right is involved here. The application of
the evidentiary rules established by the TRA did not violate the constitutional
prohibition against retroactive laws.
5. Finally, the Masons assert that the trial court, in applying the statute,
erred in its decision to exclude the testimony of the experts used by the
Masons at the first trial. They identify two basic decisions of the trial court
as error: applying the standards identified in Daubert v. Merrell Dow
Pharmaceuticals, Inc., supra, and concluding that the Masons’ expert
witnesses, Dr. Ziem and Dr. Huggins, could not testify as experts on
causation and labeling, respectively, because the methods they employed in
reaching their opinions do not meet the standards of OCGA § 24-9-67.1 (b)
(2).
As we noted above, it is proper to consider and give weight to
constructions placed on the federal rules by federal courts when applying or
construing a statute based on those rules. See, e.g., Turpin v. Todd, 268 Ga.
820 (2a) (493 SE2d 900) (1997) (because procedural default standards of § 9-14-48(d) are modeled on the federal standards, we look to federal decisions for guidance on this issue). Since OCGA § 24-9-67.1 (b) was based on Fed.R.Evid. Rule 702, which in its present form is based on the holdings in Daubert (“Rule 702 has been amended in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and to the many cases applying Daubert, including Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999)” Fed.R.Evid. Rule 702, Advisory Committee Notes, 2000
Amendments), the trial court’s application of the standards of Daubert was
proper. Turpin v. Todd, supra.
“[W]hether a witness is qualified to render an opinion as an expert is a
legal determination for the trial court and will not be disturbed absent a
manifest abuse of discretion.” (Punctuation and citation omitted.) Moran v.
Kia Motors America, Inc., 276 Ga. App. 96 (1) (622 SE2d 439) (2005). We
perceive no abuse of discretion in the trial court’s conclusion that neither
witness’s testimony was shown to be “the product of reliable principles and
methods ….” OCGA § 24-9-67.1 (b) (2). The trial court’s rationale for
excluding the testimony of Dr. Ziem as an expert on the issue of causation
was based on a lack of scientific support of her methods of determining
causation. Essentially, the trial court faulted Dr. Ziem’s methods as being
based only on her own experience and opinions, without any support in
published scientific journals or any reliable techniques for discerning the
behaviors and effects of the chemicals contained in Varathane. The Masons
argue that since Dr. Ziem used the accepted medical methodology of
differential diagnosis, the trial court could not properly find her methods to
lack scientific support. However, “expert opinions employing differential
diagnosis must be based on scientifically valid decisions as to which potential causes should be ‘ruled in’ and ‘ruled out.’ [Cit.]” Ervin v. Johnson &
Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). Dr. Ziem’s testimony did
not establish that required basis for supporting the application of a
differential diagnosis. The trial court’s findings, based primarily on Dr.
Ziem’s own testimony, support the conclusion that Dr. Ziem’s testimony
regarding causation was not “the product of reliable principles and methods
….” OCGA § 24-9-67.1 (b) (2). Moran v. Kia Motors America, Inc., supra.
The trial court based its exclusion of Dr. Huggins’s testimony as an
expert on labeling on the methods he used in reaching his opinion. In
considering Dr. Huggins’s methods, the trial court noted that Dr. Huggins
based his opinions primarily on toxicity data concerning Varathane’s
constituent chemicals without regard to the quantity of each chemical in the
product or such factors as evaporation rates, used standards having no
specific relevance to consumer use of products, and based his opinion solely
on data he obtained from the Internet and from the Masons’ attorneys.
Considering those findings, we conclude the trial court did not abuse its
discretion in determining Dr. Huggins’s testimony was not “the product of
reliable principles and methods ….” OCGA § 24-9-67.1 (b) (2).
Having concluded that the trial court’s decisions on the constitutional
issues properly before this Court on appeal were correct or constituted
harmless error, and that the trial court’s exclusion of the opinion testimony of
Dr. Ziem regarding causation and Dr. Huggins regarding labeling was not an
abuse of discretion, we find no basis for reversing the trial court’s judgment.
Judgment affirmed in part and vacated in part. All the Justices concur,
except Melton, J., who concurs specially and Hunstein, P.J. and Carley, J.,
who dissent.
S07A1486. MASON et al. v. HOME DEPOT U.S.A., INC. et al.
MELTON, Justice, concurring specially.
Although I concur with the remainder of the majority’s opinion, I
cannot concur with Division 2, as I believe that the provisions of OCGA §
24-9-67.1 (a) and (b) (1) may be harmonized without the need to strike any
part of the statute.
In analyzing this case, we must not lose sight of the three basic
principles of statutory construction. First, courts should construe a statute to give sensible and intelligent effect to all of its provisions and should refrain,
whenever possible, from construing the statute in a way that
renders any part of it meaningless. Second, a court’s duty is to
reconcile, if possible, any potential conflicts between different
sections of the same statute, so as to make them consistent and
harmonious. Third, in construing language in any one part of a
statute, a court should consider the entire scheme of the statute
and attempt to gather the legislative intent from the statute as a
whole. (Citations and punctuation omitted.) Sikes v. State, 268 Ga. 19, 21 (2) (485 SE2d 206) (1997).
With these principles in mind, OCGA § 24-9-67.1 (a) sets forth the
types of facts on which an expert may rely in forming an opinion. These facts
include: (1) “facts as proved by other witnesses;” (2) facts “perceived by or
made known to the expert at or before the hearing or trial;” and (3)
inadmissible facts or data “of a type reasonably relied on by experts in the
particular field.” With regard to these latter facts, an expert’s reliance on
inadmissible facts will not automatically make an expert opinion
inadmissible, and a trial court may ultimately determine to admit the
inadmissible facts into evidence if their probative value in assisting the jury
outweighs their prejudicial effect.
OCGA § 24-9-67.1 (b), in turn, focuses on the standards for
determining whether the expert opinion, based on the types of facts set forth
in subsection (a), will be admissible to “assist the trier of fact.” OCGA § 24-
9-67.1 (b) (1) provides that the opinion testimony is admissible if it is “based
upon sufficient facts or data which are or will be admitted into evidence at the
hearing or trial.” (Emphasis supplied). It does not mandate that an expert
opinion must be based solely on admissible facts and data, which reflects
subsection (a)’s indication that an expert may consider some inadmissible
facts in reaching an opinion. Therefore, under (b) (1), an expert opinion
which relies upon both admissible and inadmissible evidence or data will be
allowed if the opinion testimony is based on a sufficient amount of
admissible evidence that will enable the jury to properly assess the opinion
testimony and apply it “to understand the evidence or to determine a fact in
issue.” Moreover, the language of (b) (1), itself, appears to reference both
admissible and inadmissible facts. Admissible facts are those “which are
admitted” at a hearing, and, in turn, those facts “which will be admitted” may
include inadmissible facts deemed otherwise admissible by the trial court
pursuant to subsection (a).
In summation, I believe subsections (a) and (b) work together to create
a framework in which, to be admissible, the expert opinion must be based on
a sufficient amount of admissible facts (including facts which are
automatically admissible and inadmissible facts with the potential to be
admitted at the trial court’s discretion) to provide the jury with some means
of analyzing the expert’s conclusion. When interpreted in this manner to
harmonize subsection (a) and subsection (b) (1), I believe the statute sets
forth a reasonable rule for expert testimony.
Rather than harmonizing the statute and construing the entirety of its
language, as we are required to do so, the majority concludes that subsections(a) and (b) (1) are contradictory because “subsection (b) (1) limits experts to relying on potentially admissible facts and data, whereas subsection (a) plainly states that facts and data relied upon need not be admissible.” This observation, however, is actually proof that the statutory provisions work in harmony when the entirety of subsection (a) is properly considered. In language not considered by the majority, subsection (a) makes it clear that all inadmissible evidence properly relied on by an expert is, in fact, potentially admissible. It states:
If of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence in order for the
opinion or inference to be admitted. Facts or data that are
otherwise inadmissible shall not be disclosed to the jury by the
proponent of the opinion or inference unless the court determines
that their probative value in assisting the jury to evaluate the
expert’s opinion substantially outweighs their prejudicial effect.
(Emphasis supplied). Taking this important language into consideration,
subsections (a) and (b) (1) are clearly not contradictory, as each subsection
contemplates that an expert opinion may be based on some combination of
admissible and inadmissible facts and data. There is simply no contradiction
in the plain language of the statute, taken as a cogent whole, and the majority
errs by creating one based on a narrow reading of selected provisions.
S07A1486. MASON et al. v. HOME DEPOT U.S.A., INC. et al.
HUNSTEIN, Presiding Justice, dissenting.
1. I cannot agree with the majority’s holding in Division 1 that parties
in criminal and civil cases are not similarly situated when it comes to the
qualifications of expert witnesses. Because I would hold that they are
similarly situated and, further, that there is no rational basis for the
distinction drawn by the Legislature, I would find that OCGA § 24-9-67.1
violates appellants’ equal protection rights.
OCGA § 24-9-67.1 sets forth the core qualifications required of expert
opinion testimony in Georgia courts, namely, that it be the product of reliable
principles and methods applied reliably to the facts of the case. Yet the
Legislature imposes these qualifications only on potential expert witnesses in
civil cases. The majority concludes this is perfectly acceptable because civil
and criminal litigants are not similarly situated. I cannot agree. Reliable
expert opinion testimony is no less important in criminal cases than it is in
civil cases. Neither civil nor criminal parties stand to gain any benefit from
the admission of expert opinion testimony that is the product of unreliable
1In asserting in its footnote 2 that appellants lack "standing" to raise this constitutional claim, the majority mischaracterizes appellants’ equal protection challenge. Appellants do not assert that criminal defendants are "disadvantaged" by OCGA § 24-9-67.1. If anything, the
statute "disadvantages" only civil litigants, in that it precludes them from using the same expert to give the same testimony that the statute allows either the State or the defendant to use in any criminal trial
principles and methods applied unreliably to the facts of their cases. Merely
because we have recognized that civil and criminal litigants are not similarly
situated in other circumstances does not preclude this Court from recognizing
that in regard to OCGA § 24-9-67.1, civil and criminal parties are not just
similarly but equally situated when it comes to the need for qualified, reliable
expert opinion testimony at trial.
I would recognize that, for purpose of analyzing appellants’ equal
protection challenge, civil and criminal litigants are similarly situated and
that no rational basis exists for treating them differently. There is no rational
reason to subject evidence affecting an individual’s life and liberty to less
rigorous standards of admissibility than that applied to evidence affecting
mere property. The expert opinion evidence heard by a jury deciding a
negligence claim against a podiatrist should not be more reliable than expert
opinion evidence admitted to support imposition of a death sentence. While
this Court has upheld different evidentiary standards between criminal and
civil trials, e.g., Sims v. State, 260 Ga. 782 (399 SE2d 924) (1991) (under
2The statute expressly recognizes that objections may be made and the report’s author called for cross-examination or rebuttal when there are disputes over any portion of the medical
record. Id. at (a).
OCGA § 24-9-5, child who does not understand nature of oath is competent
in criminal trial to testify about crimes witnessed by or perpetrated on the
child, even though that same child would not be competent to testify about
those same matters in any civil case other than deprivation proceedings), the
Legislature had a rational reason for those distinctions. In the case of Sims,
that reason was constitutionally compelling, namely, a criminal defendant’s
right to confront the witnesses against him, even when those witnesses are
children too young to understand the nature of an oath. In Bell v. Austen,
278 Ga. 844 (2) (a) (607 SE2d 569) (2005) (upholding OCGA § 24-3-18,
which sets forth a hearsay exception for the use of unsworn medical records
in civil cases involving injury or disease), its readily discernible rational basis
was the goal of minimizing the disruption to the work of medical
professionals by dispensing with the need for their sworn testimony in the
most typical cases where routine medical records2 are sought to be admitted.
There is no rational reason for the Legislature to limit solely to civil
cases the use of expert opinion testimony that is the product of reliable
principles and methods applied reliably to the facts of a case. By creating
different standards of admissibility based only on the nature of the litigation,
OCGA § 24-9-67.1 creates the untenable situation where the same evidence
proffered by the same expert witness for the same purpose may be allowed in
criminal trials but excluded in civil trials. That expert’s opinion testimony
should be admitted or excluded for the same reasons in every case tried in our courts, without regard to whether the case is civil or criminal. There is, and
can be, no legitimate, rational reason to distinguish between the nature of the
litigation when it comes to the admissibility of the same testimony by the
same expert witness. It is an affront to our concept of justice to deem
reliable, qualified expert opinion testimony to be more important in civil
cases than in criminal cases. I would therefore hold that OCGA § 24-9-67.1
violates the equal protection clauses of the United States and Georgia
Constitutions.
2. I am also compelled to write in opposition to the majority’s opinion
upholding the constitutionality of OCGA § 24-9-67.1 (f) because it represents
a blatant attempt by the Legislature to usurp judicial power. Subsection (f)
provides that
[i]t is 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. Therefore, in
interpreting and applying this Code section, the courts of this
state may draw from the opinions of the United States Supreme
Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997);
Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and
other cases in federal courts applying the standards announced by
the United States Supreme Court in these cases.
The Constitution vests all legislative power in the General Assembly.
Art. III, Sec. I, Par. I. It vests all judicial power in the courts. Art. VI, Sec. I,
Par. I. It commands that these powers "remain forever separate and distinct."
Art. I, Sec. II, Par. III . As we have long recognized, "[i]n the dividing line
of power between these co-ordinate branches we find here the boundary —
construction belongs to Courts, legislation to the Legislature. We cannot add
a line to the law, nor can the Legislature enlarge or diminish a law by
construction." Calhoun v. McLendon, 42 Ga. 405, 407-408 (1871). The
judiciary under our government is alone empowered to interpret the laws. Id.
at 407.
While the line of demarcation separating the legislative, judicial,
and executive powers may sometimes be difficult to establish,
and for this reason each of the three co-ordinate branches of
government frequently invades the province of the others, it is
nevertheless essential to the very foundation of our system of
government that the mandate of the constitution be strictly
enforced. The judicial branch doubtless invades the legislative
field more frequently than does the legislative branch the judicial
field, but it is the duty of each to zealously protect its function
from invasion of the others. The legislature has ample power to
prevent attempted judicial legislation. Likewise the judiciary has
the power to prevent judicial functions by the legislature, and the
welfare of the State demands that it exercise this power when
necessary. McCutcheon v. Smith, 199 Ga. 685, 690-691 (2) (35 SE2d 144) (1945).
Subsection (f) of OCGA § 24-9-67.1 is not the first time the Legislature
has acted to usurp judicial power and in the past this Court has repeatedly
and flatly rebuked such efforts. In Martin v. Baldwin, 215 Ga. 293 (110
SE2d 344) (1959), the Legislature responded to the construction given a
statute by the Court of Appeals by adopting a resolution that "made no
change" in the statute itself, "but merely declared the legislative intent." Id. at
299. We responded by holding that the "mere" declaration of intent "`is
clearly an attempt by the legislature to perform a judicial function by
construing a law, and offends [Art. I, Sec. II, Par. III] of the Constitution of
this State, and is void.’ [Cit.]" Id. In Calhoun v. State Highway Department,
223 Ga. 65 (153 SE2d 418) (1967), we held that
[i]t is beyond the power of the General Assembly to specify what
evidence can or can not be introduced to prove just and adequate
compensation. If [the Legislature] have such power they could
exclude all evidence and thus destroy the Constitution and private
property also. If they can by the 1966 Act exclude evidence held
judicially to be relevant and admissible as was done in [an earlier
opinion], they can render the judiciary impotent. [Cits.]
Id. at 68. We have recognized that our zealous protection of the courts is
necessary because "[s]uch palpable usurpation of exclusive judicial functions
by the legislature offends the Constitution, paralyses the judicial function, . ..
and constitutes a potential destruction of the judicial process." Northside
Manor, Inc. v. Vann, 219 Ga. 298, 301 (133 SE2d 32) (1963). Accord United
Hospitals Service Association v. Fulton County, 216 Ga. 30, 33 ( 114 SE2d
524) (1960); McCutcheon, supra, 199 Ga. at 691 (2); Calhoun, supra;
J.M.I.C. Life Ins. Co. v. Toole, 280 Ga. App. 372 (1) (b) (634 SE2d 123)
(2006).
Rather than zealously protecting judicial functions from legislative
usurpation, the majority chooses instead to characterize the Legislature’s
codified directive in OCGA § 24-9-67.1 (f) as a "permissive suggestion" that
"merely state[s] a principle of law regularly employed by Georgia courts."
Maj. Op., p. 9. However, the majority cannot cite to a single other statute
enacted in this State in which the Legislature has codified the specific
judicial opinions it wants the courts to consider in construing the legislation it
has enacted. Unlike OCGA § 10-1-256 and OCGA § 10-1-391, which
expressly reference the Federal legislation that was the source for those
statutory provisions, the Legislature did not indicate that OCGA § 24-9-67.1
be construed with "due consideration" or "consistent with" the interpretations
relating to the Federal Rules of Evidence, Rules 702 and 703, 28 U.S.C.A.
Statutes that acknowledge the source for legislative language and express the Legislature’s desire for consistency among the courts in the interpretation to be given that language present a far different situation from the Legislature’s blatant attempt to usurp judicial functions in OCGA § 24-9-67.1 (f) by directing the courts to "draw from" Daubert, Joiner and Kumho Tire
Company, supra.
The majority depicts subsection (f) as a "permissive suggestion" but
since when have the courts of this State needed the Legislature to "suggest"
that we have "permission" to consider Federal and foreign authorities in
interpreting Georgia statutes? The courts are completely capable of
identifying cases that we "may draw from" with or without the Legislature’s
permission. It is, after all, a primary function of courts to identify the legal
precedent that is pertinent to the interpretation of a statute. Thus, even when
characterized as a "suggestion," I would recognize that subsection (f)
constitutes an impermissible encroachment on judicial authority.
OCGA § 24-9-67.1 (f) is not an instance in which the Legislature has
exercised its ample power to correct a judicial construction it believes has led
to an undesired application of a statute. E.g., Ga. L. 1998, p. 180, § 1
(amending OCGA § 17-10-6.1 and passing new version of OCGA § 42-8-66
in response to State v. Allmond, 225 Ga. App. 509 (484 SE2d 306) (1997)).
Nor is it an instance of subsequent legislation declaring the intent of the
legislating body in enacting an earlier statute. See, e.g., Jackson v. Delk, 257
Ga. 541 (3) (361 SE2d 370) (1987). It is not even an expression of
legislative intention regarding changes in statutes to be effective upon certain
judicial rulings. E.g., Ga. L. 2000, p. 947 (stating the General Assembly’s
intention that "persons sentenced to death for crimes committed prior to May
1, 2000 be executed by lethal injection if" death by electrocution was
declared unconstitutional). Rather, subsection (f) is an impermissible
directive by the Legislature to the Judiciary regarding the future construction
the Legislature wants the courts of this State to place on OCGA § 24-9-67.1.
The Legislature is dictating, in no uncertain terms, that "reliable" expert
opinion testimony is only that expert evidence held to be admissible in other
states under the standards in Daubert and the other cited U.S. Supreme Court cases. In McCutcheon, supra, 199 Ga. at 691 (2), we recognized that there are times when the welfare of the State demands that this Court exercise its power and protect the judicial department from invasion by the legislative department. I would exercise that power now in the face of the threat
subsection (f) presents to the independent functioning of the Judiciary.
The majority’s opinion, by not merely permitting but positively
condoning the Legislature’s usurpation of judicial functions, will open the
floodgates to future legislative "suggestions" directing the courts in the
manner in which statutes "may" be interpreted. Rather than using its power
to amend statutes or enact new law to address judicial rulings with which it
disagrees, the Legislature is now empowered to preempt such problems by
codifying the precise manner in which it wants its statutes interpreted by the
courts, even to the point of directing the courts to the case citations for the
appellate opinions it deems applicable. OCGA § 24-9-67.1 (f) turns on its
head "the universal rule of our system — indeed of the English system of
government, and of other systems which approximate to free government —
Given this express holding by the trial court, I can only 3 puzzle over the majority’s statement that the trial court ruled only on the separation of powers violation and did not otherwise address the constitutionality of the first sentence of OCGA § 24-9-67.1 (f).
[that] the courts declare what the law is, the legislature declares what the law
shall be." McCutcheon, supra, 199 Ga. at 691 (2).
In addition to the not insignificant separation of powers violation
presented by OCGA § 24-9-67.1 (f), there is the problem that its directive is
unworkable and uninformed. The first sentence of OCGA § 24-9-67.1 (f)
provides that "[i]t is 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." I agree with the trial court that this
sentence is unconstitutionally vague and thus void.3 The trial court phrased
its ruling succinctly when it concluded that this language
begs the question: to which other states are our courts to look
when deciding whether expert evidence is admissible?
According to one study, in 2004 there were 26 states classified as
Daubert states and 15 classified as Frye [v. United States, 293 F
1013 (D.C. Cir. 1923)] states, with the remainder "rely[ing] only
on their state equivalents of the original [Federal Rule of
Evidence] 702. . . . Although there are 26 Daubert states, there
are significant differences among them, primarily due to how
narrowly they apply the reliability requirement. [Cit.]
(Emphasis in original.) Aside from amply demonstrating the Legislature’s
ignorance of the development of post-Daubert law, application of the
12
Legislature’s "intent" in subsection (f) leads to the absurd result that "other
states" would govern the admissibility of expert opinion testimony in
Georgia. Whether considered as a directive or a mere statement of intent,
subsection (f) is so vague that people of common intelligence must
necessarily guess as to its meanings and differ as to its application. It should
accordingly be deemed void. See generally Anderson v. Atlanta Comm. for
the Olympic Games, Inc., 273 Ga. 113, 114 (1) (a) (537 SE2d 345) (2000).
In conclusion, the decisions of this Court have made it unmistakably
clear that while the Legislature alone can enact laws, the Judiciary alone can
construe those laws. Northside Manor, supra, 219 Ga. at 301; McCutcheon,
supra, 199 Ga. at 691 (2); J.M.I.C. Life Ins. Co., supra, 280 Ga. App. at 374
(1) (b). It is the responsibility of this Court to protect judicial functions from
usurpation by the Legislature. The Legislature cannot control the courts’
interpretation of what evidence proves an expert’s opinion is "reliable" any
more than it can control the courts’ interpretation of what evidence proves
compensation is "just and adequate." Calhoun, supra, 223 Ga. at 67. I would
therefore hold that because the Legislature’s codified directive in subsection
(f) to the courts regarding the construction to be given OCGA § 24-9-67.1 is
4Because I would hold that OCGA § 24-9-67.1 is unconstitutional as a violation of equal protection, I need not detail the evidentiary flaws that support my objections to the majority’s affirmance of the exclusion of testimony by Ziem and Huggins.
an impermissible attempt to invade the exclusive jurisdiction of the judicial
department, it offends the constitutional separation of powers and is therefore
void. Accordingly, I must respectfully dissent to the majority’s holding.4
I am authorized to state that Justice Carley joins in Division 2 of this
dissent.