Expert Witness Rules

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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).

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…

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.”