The facts or data in the particular proceeding upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, such facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Such 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.
(Code 1981, §24-7-703, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- Bases of an expert's opinion testimony, Fed. R. Evid. 703.
Law reviews.- For article, "Georgia's New Expert Witness Rule: Daubert and More," see 11 Ga. St. B.J. 16 (2005). For comment, "Georgia's Codification of Daubert: Narrowing the Admissibility of Novel Scientific Evidence in Georgia?," see 23 Ga. St. U.L. Rev. 481 (2006).
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under subsection (a) of former O.C.G.A. § 24-9-67.1 are included in the annotations for this Code section.
Constitutionality.
- Trial court properly found that former O.C.G.A. § 24-9-67.1(a) and (b)(1) (see now O.C.G.A. §§ 24-7-702,24-7-703) were contradictory in that paragraph (b)(1) limited experts to relying on potentially admissible facts and data, whereas subsection (a) stated that facts and data relied upon need not be admissible. Since the two provisions could not be harmonized and, read together, they rendered the former statute unconstitutionally vague; however, the trial court was not required to strike the former statute in the statute's entirety. Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603 (2008) (decided under former O.C.G.A. § 24-9-67.1)
In a personal injury suit wherein the trial court excluded the testimony of plaintiffs' two expert witnesses upon application of former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), the trial court did not err in rejecting plaintiffs' equal protection challenge since plaintiffs could not establish the necessary element of an equal protection claim that plaintiffs were situated similarly to those being treated differently. 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. Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603 (2008)(decided under former O.C.G.A. § 24-9-67.1)
Application of Daubert standard.
- After a trial court found that an expert's testimony failed the first element of Daubert because the expert's theory was essentially untestable and had not been tested, the trial court properly exercised the court's discretion in weighing the fourth Daubert factor - whether the theory had attained general acceptance within the scientific community - less heavily than the other three Daubert factors. Butler v. Union Carbide Corp., 310 Ga. App. 21, 712 S.E.2d 537 (2011) (decided under former O.C.G.A. § 24-9-67.1)
As the trial court's finding that the plaintiff's expert was a "quintessential expert for hire" was supported by the evidence, it was within the trial court's discretion to apply the Daubert factors with greater rigor in determining the admissibility of the expert's opinion. Butler v. Union Carbide Corp., 310 Ga. App. 21, 712 S.E.2d 537 (2011) (decided under former O.C.G.A. § 24-9-67.1)
Trial court's denial of Daubert motion presumed correct.
- Trial court's evidentiary ruling, denying a property owner's Daubert motion to exclude a bank's appraiser's expert testimony pursuant to former O.C.G.A. § 24-9-67.1(b) (see now O.C.G.A. §§ 24-7-702,24-7-703), was presumed correct since no transcript from the hearing thereon appeared in the record. Vill. at Lake Lanier, LLC v. State Bank & Trust Co., 314 Ga. App. 498, 724 S.E.2d 806 (2012) (decided under former O.C.G.A. § 24-9-67.1)
Ineffective assistance of counsel not established as to sequestration of expert issue.
- Trial counsel was not deficient in failing to properly invoke sequestration because the trial court did not abuse the court's discretion in allowing the state's expert to testify in rebuttal based in part on their review of the recorded testimony of the appellant's expert; accordingly, even if the appellant's counsel had invoked the rule of sequestration earlier in the trial, the court would not have abused the court's discretion in excepting the state's expert from the rule. Davis v. State, 299 Ga. 180, 787 S.E.2d 221 (2016).
No error in excluding expert testimony.
- Trial court did not err in excluding expert testimony of the value of a vehicle in the vehicle's defective condition on the date of sale because there was no evidence that the expert witness's method was relied upon more widely in the automotive field, nor of the method's known rate of error, nor whether it had been reviewed by qualified experts other than its creators. Moran v. Kia Motors Am., Inc., 276 Ga. App. 96, 622 S.E.2d 439 (2005) (decided under former O.C.G.A. § 24-9-67.1)
In an action filed pursuant to the Federal Employer's Liability Act, 45 U.S.C. § 51 et seq., the trial court did not abuse the court's discretion in excluding the testimony of an employee's treating physician as the doctor's conclusions were based on an incomplete medical history of the employee, without considering earlier lung-related illnesses, and while unaware of the employee's prior chemical exposure and treatment by other physicians. Shiver v. Ga. & Fla. Railnet, Inc., 287 Ga. App. 828, 652 S.E.2d 819 (2007), cert. denied, No. S08C0394, 2008 Ga. LEXIS 330 (Ga. 2008) (decided under former O.C.G.A. § 24-9-67.1)
In a patient's medical malpractice action, the testimony of an expert witness was properly excluded as the opinion was based on facts stated in a hypothetical question which were not proven by other witnesses or other competent evidence. Moreover, a motion in limine entered against the patient as to another expert witness's testimony was not addressed on appeal as the patient never called the expert to testify, and thus, the issue was abandoned. Hawkins v. OB-GYN Assocs., P.A., 290 Ga. App. 892, 660 S.E.2d 835 (2008), cert. denied, No. S08C1440, 2008 Ga. LEXIS 713 (Ga. 2008) (decided under former O.C.G.A. § 24-9-67.1)
In a wrongful interference with business relations and slander suit, a trial court properly excluded testimony of plaintiff's expert economist, which the plaintiff claimed would show plaintiff's financial injury as to plaintiff's tortious interference claim as the expert's reliance on the partial sales history of a single agent, along with a letter referencing annualized premiums from the sale of only certain life insurance policies and unsupported representations by another agent, did not provide an adequate basis for the expert's opinion. Am. Southern Ins. Group, Inc. v. Goldstein, 291 Ga. App. 1, 660 S.E.2d 810 (2008), cert. denied, No. S08C1555, 2008 Ga. LEXIS 680 (Ga. 2008) (decided under former O.C.G.A. § 24-9-67.1)
In a will contest, the trial court did not abuse the court's discretion in limiting testimony from the caveatrix's expert toxicologist as to whether a person's functioning level could be determined by that person's responses to general questions as the trial court found that the expert's opinion was based on generalized statistics which would have been of dubious help to the jury. Caswell v. Caswell, 285 Ga. 277, 675 S.E.2d 19 (2009) (decided under former O.C.G.A. § 24-9-67.1)
In a customer's personal injury action against a stylist and a hair salon alleging chemical burns, a motion in limine was properly granted under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) to exclude the customer's expert in chemistry because the expert's testing of hair products and the product's reaction to heat did not exactly replicate the conditions under which the incident occurred; the expert used a peroxide product that was not applied to the customer's hair and used a different type of heat source. Giannotti v. Beleza Hair Salon, Inc., 296 Ga. App. 636, 675 S.E.2d 544 (2009) (decided under former O.C.G.A. § 24-9-67.1)
In a customer's slip and fall case against a dry cleaner establishment, the trial court did not err by denying the customer's motion for a new trial and by excluding the testimony of one of the customer's expert witnesses. The expert was not qualified since the expert was retired and not a licensed physician and the testimony of that expert was cumulative of other expert testimony admitted at trial, therefore, any alleged error was harmless. Muskett v. Sketchley Cleaners, Inc., 297 Ga. App. 561, 677 S.E.2d 731 (2009), cert. denied, No. S09C1422, 2009 Ga. LEXIS 412 (Ga. 2009) (decided under former O.C.G.A. § 24-9-67.1)
Expert's testimony was properly excluded in a medical malpractice suit for corrective bladder surgery for perforations following a hysterectomy because the expert was board certified in geriatrics, and the expert had not been engaged in the active practice of gynecology or urology for three of the five years before the patient's operation. Hope v. Kranc, 304 Ga. App. 367, 696 S.E.2d 128 (2010) (decided under former O.C.G.A. § 24-9-67.1)
As vehicle occupants failed to satisfy the Daubert factors or any other reasonable criteria for purposes of measuring the reliability of their expert witness's conclusions with respect to a vehicle accident that occurred in a construction zone, a trial court did not abuse the court's discretion when the court excluded the witness's testimony under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703); the expert's conclusions were based solely on the expert's own assertions and were unsupported by either the Daubert factors or any other reasonable reliability criteria. HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 697 S.E.2d 770 (2010) (decided under former O.C.G.A. § 24-9-67.1)
It was within the trial court's discretion to exclude an expert witness's testimony because a sister and a brother failed to satisfy the Daubert factors or any other reasonable criteria by which the trial court could measure the reliability of the expert's conclusions; the expert failed to cite any treatise or authority supporting the expert's opinion, and the sister and brother presented no evidence that the expert had any experience that would supply the foundation supporting the expert's conclusions. HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 697 S.E.2d 770 (2010) (decided under former O.C.G.A. § 24-9-67.1)
In a mother's medical malpractice action against a hospital, the trial court did not abuse the court's discretion by finding that the mother's witness was not admissible as an expert on whether any member of the hospital's nursing staff breached the standard of care pursuant to former O.C.G.A. § 24-9-67.1(c)(2)(D) (see now O.C.G.A. §§ 24-7-702,24-7-703) because the witness deposed that the witness did not train or practice as a nurse, did not train nurses, did not supervise nurses outside of normal nurse-physician interactions, and did not hold out to be an expert in nursing or in the standard of care of nurses. Pendley v. S. Reg'l Health Sys., 307 Ga. App. 82, 704 S.E.2d 198 (2010) (decided under former O.C.G.A. § 24-9-67.1)
Opinion of the plaintiff's expert, a pathologist, failed the first element of Daubert because the expert relied on the theory that any exposure to the asbestos in the defendant's product would contribute to the development of mesothelioma, yet the expert testified that the theory was essentially untestable and had not been tested. Thus, the expert's testimony was properly excluded under former O.C.G.A. § 24-9-67.1(b)(2) (see now O.C.G.A. §§ 24-7-702,24-7-703) since it was not the product of reliable principles and methods. Butler v. Union Carbide Corp., 310 Ga. App. 21, 712 S.E.2d 537 (2011) (decided under former O.C.G.A. § 24-9-67.1)
Trial court did not abuse the court's discretion in refusing to permit a mother's expert on security practices to testify about the content of certain service call lists on which the expert had relied in forming the expert's opinions about the adequacy of security at the complex because the mother made no showing that the circumstances of the various incidents reflected on the lists were substantially similar to the murder of her son, such that those incidents would bear directly upon the question of foreseeability; the lists were confusing, and substantial explanation would have been required for the jury to understand the lists. Raines v. Maughan, 312 Ga. App. 303, 718 S.E.2d 135 (2011), cert. denied, No. S12C0436, 2012 Ga. LEXIS 270 (Ga. 2012) (decided under former O.C.G.A. § 24-9-67.1)
Medical expert proper.
- In a medical malpractice action, the trial court's order granting the defending doctor's motion to exclude the patient's expert witness testimony as the testimony related to the causation and permanence of the patient's erectile dysfunction based on a certain test was vacated because the order could be interpreted as requiring the exclusion of all the expert's opinion testimony as to the cause and permanence of the patient's erectile dysfunction. Smith v. Rodillo, 330 Ga. App. 365, 765 S.E.2d 432 (2014).
Qualification as an expert not satisfied.
- Trial court did not err in refusing to qualify the employees' witness as an expert because the witness's testimony provided no evidence, let alone expert testimony, that would preclude summary judgment in favor of the Georgia Department of Human Services, and under former O.C.G.A. § 24-9-67.1(d) (see now O.C.G.A. §§ 24-7-702,24-7-703), the trial court had discretion in determining whether expert testimony was necessary; any use of the witness as an expert in the case was wholly unnecessary because the areas of the expert's specialized knowledge were not issues beyond the ken of lay persons. Forrester v. Ga. Dep't of Human Servs., 308 Ga. App. 716, 708 S.E.2d 660 (2011) (decided under former O.C.G.A. § 24-9-67.1)
Expert must be member of same profession.
- Under former O.C.G.A. § 24-9-67.1(c) (see now O.C.G.A. §§ 24-7-702,24-7-703), the trial court erred in allowing a pharmacist to testify about a physician's negligence. A medical expert had to show either active practice or teaching for three of the last five years, and also had to be a member of the same profession as the person whose performance the expert was evaluating. Smith v. Harris, 294 Ga. App. 333, 670 S.E.2d 136 (2008), cert. denied, No. S09C0428, 2009 Ga. LEXIS 328 (Ga. 2009) (decided under former O.C.G.A. § 24-9-67.1)
Nurse's affidavit insufficient in case alleging physical therapist's negligence.
- Trial court erred in ruling that a registered nurse could provide an expert affidavit regarding a physical therapist's care, given that O.C.G.A. § 9-11-9.1(g) categorized nurses and physical therapists as practicing separate professions, and because an expert was required to meet the conditions of former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) in order to provide a § 9-11-9.1 affidavit. Ball v. Jones, 301 Ga. App. 340, 687 S.E.2d 625 (2009) (decided under former O.C.G.A. § 24-9-67.1)
Evidence of expert's personal practices admitted.
- In a medical malpractice case, evidence of an expert's personal practices, unless excludable on other grounds, is admissible both as substantive evidence and to impeach the expert's opinion as to the applicable standard of care. To the extent Johnson v. Riverdale Anesthesia Assocs., 563 S.E.2d 431 (Ga. 2002), held otherwise, it is overruled. Condra v. Atlanta Orthopaedic Group, P.C., 285 Ga. 667, 681 S.E.2d 152 (2009) (decided under former O.C.G.A. § 24-9-67.1)
Opinion of a witness qualified as expert may be given on facts proved by other witnesses. DOT v. Baldwin, 292 Ga. App. 816, 665 S.E.2d 898 (2008) (decided under former O.C.G.A. § 24-9-67.1)
No error in excluding experts' affidavits.
- Trial court did not err by denying a defendant's request to admit testimony regarding the contents of affidavits used, in part, by the defendant's expert witnesses as the basis for the experts' opinions regarding the defendant's mental status as, in applying former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), the trial court first found that the facts contained in the disputed affidavits were otherwise inadmissible hearsay, as the affidavits rested on the veracity and competency of persons not in court and did not come within any statutorily-recognized hearsay exception. The trial court then balanced the probative value of the affidavits against the prejudicial effect, noting that the affidavits were originally submitted in the defendant's habeas proceeding, contained identical language thereby casting suspicion on the affidavits' trustworthiness, contained conclusory statements and irrelevant and prejudicial information related to the defendant's alleged alcohol and drug use and the crime of murder for which the defendant was convicted; and, therefore, the affidavits had little probative information and were cumulative of other evidence. Rogers v. State, 282 Ga. 659, 653 S.E.2d 31 (2007), cert. denied, 552 U.S. 1311, 128 S. Ct. 1882, 170 L. Ed. 2d 747, reh'g denied, 554 U.S. 930, 128 S. Ct. 2988, 171 L. Ed. 2d 907 (2008), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-9-67.1)
Striking surveyor's affidavits held proper.
- In a suit between two landowners to enforce the terms of an easement, the trial court did not abuse the court's discretion in excluding two affidavits from a surveyor in determining land elevation as no testimony was offered regarding any knowledge, skill, experience, training, or education the witness possessed in that capacity, and no evidence was presented as to the principles and methods the witness employed including whether the methods were reliable. McGuire Holdings, LLLP v. TSQ Partners, LLC, 290 Ga. App. 595, 660 S.E.2d 397 (2008) (decided under former O.C.G.A. § 24-9-67.1)
Applicability.
- Because former O.C.G.A. § 24-9-67.1(a) (see now O.C.G.A. §§ 24-7-702,24-7-703), which governed expert witness testimony in civil actions, did not apply to probation revocation hearings, the trial court's ruling to permit the expert's testimony regarding the presence of marijuana in a joint seized from the probationer was not erroneous as the state was not required to comply with Daubert to prove the expert's qualifications. Carlson v. State, 280 Ga. App. 595, 634 S.E.2d 410 (2006), cert. denied, No. S06C2099, 2007 Ga. LEXIS 215 (Ga. 2007) (decided under former O.C.G.A. § 24-9-67.1)
Construction with other law.
- Upon a proper appeal from a final order, while neither former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) nor O.C.G.A. § 9-11-16 required that a complaint be dismissed or stricken for failing to comply with the terms of those statutes, unlike the Anti-SLAPP statute, codified at O.C.G.A. § 9-11-11.1, because the trial court did not enter a final judgment within the meaning of O.C.G.A. § 9-11-68(b)(1), attorney fees were properly denied; moreover, as to the claim that dismissing and refiling in another court constitutes "improper judge shopping," obtaining a different judge was simply the result of the action, not necessarily the reason for doing so. McKesson Corp. v. Green, 286 Ga. App. 110, 648 S.E.2d 457 (2007), cert. denied, No. S07C1602, 2007 Ga. LEXIS 656 (Ga. 2007) (decided under former O.C.G.A. § 24-9-67.1)
In a medical malpractice action, when a doctor was the only expert witness submitted by the suing couple, and the couple did not challenge the trial court's exclusion of another doctor's testimony, their argument that said doctor's testimony should have been admitted as a rebuttal witness was unpersuasive. Thomas v. Peachtree Orthopaedic Clinic, P.C., 290 Ga. App. 869, 660 S.E.2d 758 (2008), cert. denied, No. S08C1373, 2008 Ga. LEXIS 915 (Ga. 2008) (decided under former O.C.G.A. § 24-9-67.1)
Subject matter improper for expert testimony.
- As the undisputed evidence showed that the mitochondrial DNA (mtDNA) analysis was based on sound scientific theory and produced reliable results when proper procedures were followed, and the "direct sequencing" method employed in the prosecution of the defendant for murder was the only technique accepted and used by those who conducted forensic mtDNA testing, as the technique produced reliable results upon which any practitioner could draw conclusions, the trial court did not err in allowing that evidence. Vaughn v. State, 282 Ga. 99, 646 S.E.2d 212 (2007) (decided under former O.C.G.A. § 24-9-67.1)
In a negligence action, the trial court erred by allowing the investigating police officer to give expert testimony about the color of the traffic light as the color of the light was a question that average jurors could have answered for themselves, and because the color of the traffic light was the determining factor for assessing negligence, the officer's expert opinion on this issue likely influenced the jury's verdict; thus, based on such error, a new trial was ordered. Purcell v. Kelley, 286 Ga. App. 117, 648 S.E.2d 454 (2007) (decided under former O.C.G.A. § 24-9-67.1)
Healthcare expert not qualified.
- In a medical malpractice and negligence action by an arrestee against a county, jail medical personnel, a medical lab, and lab personnel, these defendants successfully moved to exclude the testimony of an expert in correctional health on the basis of former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) because the expert was not qualified to testify as to any matter outside correctional health care - specifically, the standard of care in the fields of internal medicine, infectious disease, or laboratory procedures with regard to the arrestee's state law claims; furthermore, the expert's testimony was neither relevant nor reliable under the Daubert analysis, and therefore, it was excluded pursuant to Fed. R. Evid. 702. Dukes v. State, 428 F. Supp. 2d 1298 (N.D. Ga. 2006), aff'd, 212 Fed. Appx. 916 (11th Cir. 2006) (decided under former O.C.G.A. § 24-9-67.1)
Expert retained by the plaintiffs in a medical malpractice action, which was based on the failure to adequately inform a patient of the potential risks and complications connected with a sleep apnea procedure, was not qualified to testify under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) because the expert had not performed the procedure in question on other patients nor did the expert aver that the expert had obtained informed consents for similar procedures. Nathans v. Diamond, 282 Ga. 804, 654 S.E.2d 121 (2007) (decided under former O.C.G.A. § 24-9-67.1)
Trial court did not abuse the court's discretion by dismissing the parents' medical malpractice action because the court correctly found that the purported expert offered by the parents failed to make even one diagnosis of a vascular ring within five years of the date at issue, and had not taught others for at least three of the last five years to diagnose a vascular ring. Spacht v. Troyer, 288 Ga. App. 898, 655 S.E.2d 656 (2007), cert. denied, 129 S. Ct. 726, 172 L. Ed. 2d 726 (2008) (decided under former O.C.G.A. § 24-9-67.1)
Trial court properly refused to admit the testimony of a patient's expert in a case involving a claim of an unnecessary surgical procedure because the expert, who described the physician's medical practice as a "family practice", had no surgical training or expertise. Long v. Natarajan, 291 Ga. App. 814, 662 S.E.2d 876 (2008) (decided under former O.C.G.A. § 24-9-67.1)
In a malpractice and wrongful death case filed against a surgeon and an anesthesiologist, as the expert retained by the decedent's spouse did not teach or practice in the area of post-surgical airway management with sufficient frequency to establish the appropriate level of knowledge to meet the criteria of former O.C.G.A. § 24-9-67.1(c)(2) (see now O.C.G.A. §§ 24-7-702,24-7-703), and lacked training in anesthesiology, the expert's opinion was properly excluded. Dawson v. Leder, 294 Ga. App. 717, 669 S.E.2d 720 (2008) (decided under former O.C.G.A. § 24-9-67.1)
Treating physician's testimony sufficient.
- In a Federal Employers' Liability Act action, testimony of an employee's treating physician was not insufficient under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) because after diagnosing the employee with hepatitis related to chemical exposure, the physician reviewed reports of, inter alia, a toxicologist that the chemical in a leaking train car was hydrogen sulfide and opined as to causation; the physician's opinion was not merely based on the temporal proximity of the chemical exposure to the onset of the employee's symptoms. CSX Transp., Inc. v. McDowell, 294 Ga. App. 871, 670 S.E.2d 543 (2008) (decided under former O.C.G.A. § 24-9-67.1)
Qualification of nurses as expert witnesses.
- Registered nurses and licensed practical nurses who cared for a decedent after the decedent's diagnosis with Alzheimer's disease did not lack qualifications to testify as experts about the decedent's capacity to execute a deed because the law did not require that only physicians be allowed to give testimony regarding a medical issue, but permitted others with certain training and experience to testify on issues within the scope of their expertise, and a licensed practical nurse or registered nurse was qualified to testify as an expert witness within the areas of the nurse's expertise; as to any failure to qualify the witnesses as experts, the question of whether a person possessed the qualifications of an expert witness rested entirely in the sound discretion of the trial court. Smith v. Smith, 281 Ga. 380, 637 S.E.2d 662 (2006) (decided under former O.C.G.A. § 24-9-67.1)
In a medical malpractice action, given the relevant past experience of the patient's expert as a nurse, and the expert's familiarity with the degree and skills required of nurses and other medical staff in giving intermuscular injections, the expert was sufficiently qualified to render an expert opinion in the case. Allen v. Family Med. Ctr., P.C., 287 Ga. App. 522, 652 S.E.2d 173 (2007) (decided under former O.C.G.A. § 24-9-67.1)
Complaint alleged that a nurse committed malpractice by not accurately triaging a patient. As the patient's expert nurse had ongoing practical experience in patient triage, and years of practical and teaching experience in supervising patient care, the expert's affidavit filed under O.C.G.A. § 9-11-9.1 was legally sufficient even though the expert had not performed emergency room triage. Houston v. Phoebe Putney Mem. Hosp., Inc., 295 Ga. App. 674, 673 S.E.2d 54 (2009) (decided under former O.C.G.A. § 24-9-67.1)
In a medical malpractice action brought by a patient against a hospital and an employee of the hospital, the patient's expert nurse was held to be indisputably qualified under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) based on the nurse actively and regularly practicing as a licensed nurse on a full-time basis in supervising and directly performing nursing services and being a faculty member at two educational institutions accredited in the teaching of the nursing profession. Lee v. Phoebe Putney Mem. Hosp., Inc., 297 Ga. App. 692, 678 S.E.2d 340 (2009) (decided under former O.C.G.A. § 24-9-67.1)
In a case involving a patient who fell at the doctor's office while a nurse was weighing the patient, a trial court abused the court's discretion in concluding that a nursing expert was not qualified to testify under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703). The proper area of specialty was not weighing patients, in which the nurse expert had little experience, but managing patient safety while moving or directing patients, in which the nurse expert had sufficient experience at a surgical clinic. Anderson v. Mt. Mgmt. Servs., 306 Ga. App. 412, 702 S.E.2d 462 (2010) (decided under former O.C.G.A. § 24-9-67.1)
Medical malpractice expert testimony sufficient to avoid directed verdict.
- Patient who was allergic to latex alleged a hospital's negligent use of a latex catheter caused her to develop interstitial cystitis (IC). Though the patient's medical expert admitted that the causes of IC were unknown, and that no research linked IC to latex allergies, the expert's testimony that allergic reactions could trigger IC, and did so in the patient's case, was sufficient evidence of medical causation to justify denying the hospital's motion for judgment notwithstanding the verdict. EHCA Dunwoody, LLC v. Daniel, 277 Ga. App. 783, 627 S.E.2d 830 (2006) (decided under former O.C.G.A. § 24-9-67.1)
In a medical malpractice action, the trial court properly denied a neurosurgeon's motion to dismiss the action, on grounds that the affidavit required under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) was from an orthopedist and not a fellow neurosurgeon, as the statutory area of practice in which the opinion was to be given was dictated not by the apparent expertise of the treating physician, but rather by the allegations of the complaint concerning the plaintiff's injury. Abramson v. Williams, 281 Ga. App. 617, 636 S.E.2d 765 (2006), cert. denied, No. S07C0226, 2007 Ga. LEXIS 91 (2007) (decided under former O.C.G.A. § 24-9-67.1)
In a medical malpractice action involving alleged nerve damage to a child during delivery, a trial court properly directed a verdict in favor of the doctor upon determining that the suing parent failed to provide causation evidence as the parent's expert failed to rule in a certain possibility as to the cause of the injury at issue and, instead, assumed a cause of injury, which was unsupported by the evidence. Hawkins v. OB-GYN Assocs., P.A., 290 Ga. App. 892, 660 S.E.2d 835 (2008) (decided under former O.C.G.A. § 24-9-67.1)
Police officer as expert.
- In a negligence case, assuming that admission of a police officer's affidavit opining as to the cause of an accident was error under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), the error was harmless in light of other evidence showing that the proximate cause of the accident was the driver's own negligence, including the driver's statements to treating physicians that the driver was reaching for the driver's cell phone when the driver ran off the road and a statement to the insurance adjustor that the driver was distracted. Kecskes v. City of Mt. Zion, 300 Ga. App. 348, 685 S.E.2d 329 (2009) (decided under former O.C.G.A. § 24-9-67.1)
Expert's conclusion could not serve as basis for summary judgment.
- Expert's testimony as to the cause of an auto accident was speculative and could not support summary judgment as the credibility of the expert and the weight to be given to the opinion were matters to be addressed by the jury; moreover, if the expert's opinion was based upon inadequate knowledge, this fact did not mandate the exclusion of the opinion but, rather, presented a jury question as to the weight which should be assigned to the opinion. Layfield v. DOT, 280 Ga. 848, 632 S.E.2d 135 (2006) (decided under former O.C.G.A. § 24-9-67.1)
Opinion testimony properly admitted.
- In a premises liability case involving an elevator that stopped above landing level, the trial court properly allowed the plaintiffs' expert to give opinion testimony that the elevator maintenance provider did not follow industry standards in maintaining the elevator; the expert based the opinion on the expert's personal knowledge of the elevator industry, the expert's review of the elevator maintenance records, and the deposition testimony of the provider's mechanics. Brady v. Elevator Specialists, Inc., 287 Ga. App. 304, 653 S.E.2d 59 (2007) (decided under former O.C.G.A. § 24-9-67.1)
Psychologist testimony on bonding in parental rights termination case.
- In a case terminating the mother's parental rights, the clinical psychologist's testimony regarding the psychologist's bonding evaluation on the child was properly admitted because the psychologist, who was tendered as an expert on child psychology and attachment and bonding without objection, explained that the psychologist formed the psychologist's opinions based on an interview, observation, and testing; the psychologist testified that the methods the psychologist used and the information the psychologist gathered were of the type regularly used by others in the psychologist's profession; and the psychologist's opinion was not objectionable on the grounds that the opinion embraced an ultimate issue to be decided by the trier of fact. In the Interest of R. S. T., 345 Ga. App. 300, 812 S.E.2d 614 (2018).
Objections to expert opinions not timely filed.
- In a negligence suit involving the death of an individual in an automobile collision, a trial court erred by declaring that application of former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), with regard to a hitch manufacturer seeking to exclude plaintiff's expert witness, would have been unconstitutional as the motion to exclude the expert was filed several months after the final pretrial conference had already taken place and, thus, the time period within which the trial court was required to hold a hearing and rule on the motion had already passed. However, application of the former statute would not have changed the trial court's ultimate, and correct, conclusion that the hitch manufacturer's motion to exclude the expert was without merit based on the time period for ruling on the motion having already passed. Ford Motor Co. v. Gibson, 283 Ga. 398, 659 S.E.2d 346 (2008) (decided under former O.C.G.A. § 24-9-67.1)
Speculative opinion testimony by expert improperly admitted.
- In a premises liability case involving an elevator that stopped above landing level, the trial court should have excluded the opinion of an expert that if the elevator maintenance provider had followed a more aggressive maintenance schedule for the elevator, the condition in the elevator that led to its mis-leveling would almost certainly have been discovered or prevented before a passenger was injured; the expert had showed no basis for the opinion. Brady v. Elevator Specialists, Inc., 287 Ga. App. 304, 653 S.E.2d 59 (2007) (decided under former O.C.G.A. § 24-9-67.1)
Capacity to execute a deed.
- Even if registered nurses and licensed practical nurses who cared for a decedent after the decedent's diagnosis with Alzheimer's disease lacked qualifications to testify as experts about the decedent's capacity to execute a deed, a trial court did not err in permitting the nurses to testify because even a lay witness could give evidence on the question of capacity as long as the witness gave sufficient facts to form the basis of the witness's opinion; the witnesses offered detailed testimony about the decedent's inability to recognize the decedent's sibling or sign the decedent's own name, the decedent's chronic disorientation, the decedent's need for constant redirection and reorientation, and other factual observations the nurses made about the decedent's mental state and the decedent's apparent lack of capacity. Smith v. Smith, 281 Ga. 380, 637 S.E.2d 662 (2006) (decided under former O.C.G.A. § 24-9-67.1)
Striking valuation testimony proper.
- Trial court did not manifestly abuse the court's discretion by striking certain testimony of the condemnee's expert witness regarding valuation on the ground that the testimony was without sufficient foundation since the testimony was based on an assumption of the value as if the subject property had already been subdivided, which it had not; in making its ruling, the trial court properly discerned that, even though a different use of the property was shown to have been reasonably probable, a jury cannot evaluate the property as though the new use were an accomplished fact. Woodland Partners Ltd. P'ship v. DOT, 286 Ga. App. 546, 650 S.E.2d 277 (2007), cert. denied, No. S07C1767, 2007 Ga. LEXIS 698 (Ga. 2007) (decided under former O.C.G.A. § 24-9-67.1)
Probative value.
- To the extent that an affidavit as to the value of a truck was offered as an expert opinion, the affidavit lacked probative value as there was no evidence that the valuation method the affiant used was reliable. Dowdell v. Volvo Commer. Fin., LLC, 286 Ga. App. 659, 649 S.E.2d 750 (2007) (decided under former O.C.G.A. § 24-9-67.1)
Limited qualification as expert.
- In a suit against a permittee by the Environmental Protection Division of the Georgia Department of Natural Resources (EPD), the permittee objected to testimony of an EPD employee on the ground that the employee was not qualified as an engineer under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703). The trial court, however, qualified the witness and permitted the employee to testify as an expert in biologic and anaerobic processes, and did not abuse the court's discretion in doing so. Agri-Cycle LLC v. Couch, 284 Ga. 90, 663 S.E.2d 175 (2008) (decided under former O.C.G.A. § 24-9-67.1)
Expert found not qualified to render opinion.
- In a personal injury case when a driver alleged that a loose tie rod caused the driver to lose control of the steering, neither of the driver's experts was qualified to render an opinion as to the cause of the accident; the first expert did not have adequate knowledge or experience with the mechanical aspects of a vehicle to determine if mechanical failure caused the vehicle to lose control and also had no experience in evaluating design defects, and the second expert, an experienced mechanic and a police officer, had no experience in the area of accident reconstruction or in evaluating the circumstances surrounding catastrophic mechanical failure. Smith v. Liberty Chrysler-Plymouth-Dodge, Inc., 285 Ga. App. 606, 647 S.E.2d 315 (2007), cert. denied, No. S07C1526, 2007 Ga. LEXIS 861 (Ga. 2007); cert. denied, 552 U.S. 1317, 128 S. Ct. 1883, 170 L. Ed. 2d 757 (2008) (decided under former O.C.G.A. § 24-9-67.1)
Trial court did not abuse the court's discretion in applying former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), and excluding the testimony of two experts in plaintiffs' personal injury suit because neither witness's testimony was shown to be the product of reliable principles and methods. One expert's testimony on the issue of causation lacked scientific support, and the other expert's testimony on the issue of labeling used standards having no specific relevance to consumer use of products, and the opinion was based solely on data obtained from the Internet and from plaintiffs' attorneys. Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603 (2008) (decided under former O.C.G.A. § 24-9-67.1)
When a couple who filed a medical malpractice case did not show that their experts had actual professional knowledge and experience through active practice or by teaching during at least three of the last five years, the trial court properly held under O.C.G.A. §§ 9-11-9.1 and former24-9-67.1 that the experts were not qualified to give an opinion and dismissed the case. Akers v. Elsey, 294 Ga. App. 359, 670 S.E.2d 142 (2008) (decided under former O.C.G.A. § 24-9-67.1)
Expert allowed to testify.
- In a personal injury and loss of consortium action, the trial court did not err by allowing a business to call a witness who had not been identified as an expert as: (1) the proper remedy for the erroneous admission of evidence was to request a continuance or a mistrial, neither of which the injured invitee did; (2) the invitee did not dispute that the invitee received, before trial, the substance of the witness's expected testimony, along with a curriculum vitae, but only argued that the business failed to amend the interrogatory answers; and (3) the invitee failed to object either when the business called the witness to testify, or when the business tendered the witness as an expert. Magill v. Edd Kirby Chevrolet, Inc., 277 Ga. App. 619, 627 S.E.2d 207 (2006) (decided under former O.C.G.A. § 24-9-67.1)
There was no abuse of discretion in allowing a witness to testify as an expert on steel and polymer vaults or soil conditions in an action seeking a permanent injunction against a cemetery group because the cemetery group failed to show that the testimony was not the product of reliable principles and methods. Savannah Cemetery Group, Inc. v. DePue-Wilbert Vault Co., 307 Ga. App. 206, 704 S.E.2d 858 (2010) (decided under former O.C.G.A. § 24-9-67.1)
In a visitation dispute, it was not an abuse of discretion to allow the subject children's therapist to testify as an expert in child psychology because any dispute as to the witness's qualifications was properly explored on cross-examination and went to the weight of the witness's testimony, rather than the admissibility of that testimony. Gottschalk v. Gottschalk, 311 Ga. App. 304, 715 S.E.2d 715 (2011) (decided under former O.C.G.A. § 24-9-67.1)
Medical examiner's testimony on cause of death permitted.
- Trial court did not err in denying the defendant's motion to exclude the testimony of the medical examiner as to the cause of the murder victim's death due to the destruction of the medical records reviewed because although the testimony partially depended on hearsay contained in the medical records, such records were the type of evidence on which an expert could rely and no Brady violation occurred as the defendant was notified of the testimony prior to trial. Burney v. State, Ga. , 845 S.E.2d 625 (2020).
Surgeon allowed to testify.
- Under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), a vascular surgeon was qualified to give an opinion in a medical malpractice case against an orthopedic surgeon because the vascular surgeon did not allege that the doctor was negligent in the performance of a patient's knee replacement surgery, only in the failure to assess the vascular issues involved, particularly in light of the patient's medical history. Cotten v. Phillips, 280 Ga. App. 280, 633 S.E.2d 655 (2006), cert. denied, No. S06C1966, 2007 Ga. LEXIS 112 (Ga. 2007) (decided under former O.C.G.A. § 24-9-67.1)
Expert testimony as to gang activity.
- Sufficient evidence, including expert testimony, supported the appellants' convictions because the evidence established that the appellants were associated with a criminal street gang and that the armed robbery and aggravated assault the appellants engaged in constituted criminal street gang activity and were intended to further the interests of the gang. Lupoe v. State, 300 Ga. 233, 794 S.E.2d 67 (2016).
Caseworker allowed to testify.
- In a termination of parental rights proceeding, pretermitting whether a case worker was qualified to give an expert opinion about the adverse effects of long-term foster care on the mother's twin children, because the mother failed to show prejudice in light of the other evidence supporting the termination of parental rights, the juvenile court did not err in allowing the case worker's testimony. In the Interest of T.J., 281 Ga. App. 673, 637 S.E.2d 75 (2006) (decided under former O.C.G.A. § 24-9-67.1)
In a medical malpractice case, because the trial court was authorized to conclude that the patient's expert witnesses applied reliable principles and methods to the facts of the case, and that they were offering opinions in the area of practice or specialty of pediatric medicine, it did not abuse the court's discretion in qualifying those experts under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703). Canas v. Al-Jabi, 282 Ga. App. 764, 639 S.E.2d 494 (2006), cert. denied, 2007 Ga. LEXIS 197 (Ga. 2007); reversed on other grounds, Kaminer v. Canas, 282 Ga. 830, 653 S.E.2d 691 (2007) (decided under former O.C.G.A. § 24-9-67.1)
Expert on DNA testing.
- No error resulted by admitting expert testimony on the issue of DNA testing and because the defendant did not contend that the expert's testimony failed to meet the Harper standard, no basis for reversal on this ground existed. Carruth v. State, 286 Ga. App. 431, 649 S.E.2d 557 (2007) (decided under former O.C.G.A. § 24-9-67.1)
Elevator inspector as expert.
- In a premises liability case involving an elevator that stopped above landing level, a person who had worked for 31 years for an elevator company, with responsibilities including maintenance, repair, and upgrading of existing elevators for customers, and who was certified as a qualified elevator inspector, was properly accepted as an expert. Brady v. Elevator Specialists, Inc., 287 Ga. App. 304, 653 S.E.2d 59 (2007) (decided under former O.C.G.A. § 24-9-67.1)
Qualification as medical expert.
- Trial court did not abuse the court's discretion in denying a motion in limine filed by a doctor and the board of regents of a medical college to exclude expert testimony because the trial court correctly determined that the expert's opinion was based on sufficient facts and data in order to be admissible at trial; the expert deposed that the expert's opinion of the cause of the patient's epidural hematoma was derived from applying the expert's medical knowledge and the expert's experience with previous cases to the patient's medical records and deposition testimony regarding the incident given by the doctor and the patient. Bd. of Regents of the Univ. Sys. v. Casey, 300 Ga. App. 850, 686 S.E.2d 807 (2009) (decided under former O.C.G.A. § 24-9-67.1)
Trial court did not abuse the court's discretion in denying a motion in limine filed by a doctor and the board of regents of a medical college to exclude expert testimony because the expert reviewed the medical records of the patient's case as well as the deposition testimony of the doctor and the patient before using a differential diagnosis to explain the expert's theory of the cause of the patient's epidural hematoma; the trial court denied the motion in limine based on the expert's use of differential diagnosis because, the expert explained, based on prior experiences and medical knowledge as applied to the medical records, time-line, and testimony given in the case, why the expert believed that the patient's interaction with the doctor caused the epidural hematoma either to form or to worsen to the point that it caused the damage suffered by the patient. Bd. of Regents of the Univ. Sys. v. Casey, 300 Ga. App. 850, 686 S.E.2d 807 (2009) (decided under former O.C.G.A. § 24-9-67.1)
Qualification as DOT expert.
- Given an expert witness's qualifications, including his advanced degrees in civil engineering and public administration, professional engineer's license, certification as a professional traffic operations engineer, fifteen years experience working at the DOT, and eight years experience at the local government level, and the expert's testimony based on personal knowledge of the DOT's manuals and inspection policies, a trial court did not err in allowing the witness to give an opinion of whether the DOT had complied with its storm inspection policy. Ga. DOT v. Miller, 300 Ga. App. 857, 686 S.E.2d 455 (2009) (decided under former O.C.G.A. § 24-9-67.1)
Qualification as water intrusion/infiltration expert.
- In a property owner's action for trespass and nuisance, the trial court did not abuse the court's discretion by allowing the owner's expert witness to testify because the expert (1) relied on sufficient facts and data; (2) was a civil engineer with a doctorate in engineering science and mechanics; and (3) had consulted and testified as an expert in numerous water intrusion/infiltration and related cases; although the expert deposed that the expert's opinion was a theory that was impossible to prove since the expert could not repeat the owner's initial water leak, the expert had factual information showing that the owner had not had an excessive rainwater problem before a sprinkler vault leak and that chlorinated water flowed to the owner's property in large volumes and could have done so for months, and the expert had factual information that the owner experienced excessive flooding during rains thereafter. Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009), cert. denied, No. S10C0669, 2010 Ga. LEXIS 468 (Ga. 2010) (decided under former O.C.G.A. § 24-9-67.1)
Trial court should rule on admissibility before ruling on summary judgment.
- Because the opinions of a homeowner's experts, if admissible, would present a jury question on the issue of an exterminator's breach of contract and the extent of the homeowner's damages, a trial court erred in failing to decide the admissibility of these opinions under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) before granting summary judgment to the exterminator. An v. Active Pest Control South, Inc., 313 Ga. App. 110, 720 S.E.2d 222 (2011) (decided under former O.C.G.A. § 24-9-67.1)
Summary judgment entered in favor of a sanitation company was vacated as to a citizen's claim that the company negligently damaged a platform, created a tripping hazard, and caused the citizen's injuries because the trial court had to rule on the admissibility of the citizen's expert witness before the court of appeals could consider whether the company bent the landing and caused a tripping hazard; the company moved to exclude the expert's testimony under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), but the trial court never ruled on admissibility. Burroughs v. Mitchell County, 313 Ga. App. 8, 720 S.E.2d 335 (2011) (decided under former O.C.G.A. § 24-9-67.1)
Jury instructions.
- In a medical malpractice case when evidence of an expert's personal practices is admitted, the trial court must give jury instructions that clearly define the legal meaning of standard of care; enunciate the principle that a mere difference in views between physicians does not by itself prove malpractice; and clarify concepts such as burden of proof and credibility of witnesses. In addition, the party whose expert has been cross-examined has the ability to elicit explanations for why the expert's practices differ from what that expert attested to as the standard of care. Condra v. Atlanta Orthopaedic Group, P.C., 285 Ga. 667, 681 S.E.2d 152 (2009) (decided under former O.C.G.A. § 24-9-67.1)
RESEARCH REFERENCESDefense Use of Economist, 31 Am. Jur. Trials 287.
ALR.- Medical negligence in extraction of tooth, established through expert testimony, 18 A.L.R.6th 325.
Admissibility in evidence, in civil action, of tachograph or similar paper or tape recording of speed of motor vehicle, railroad locomotive, or the like, 18 A.L.R.6th 613.
Admissibility of expert testimony by nurses, 24 A.L.R.6th 549.
Qualification as expert to testify as to findings or results of scientific test concerning DNA matching, 38 A.L.R.6th 439.
Admissibility of computer forensic testimony, 40 A.L.R.6th 355.
Admissibility of evidence taken from vehicular Event Data Recorders (EDR), Sensing Diagnostic Modules (SDM), or "black boxes", 40 A.L.R.6th 595.
Admissibility of biomedical engineer testimony, 43 A.L.R.6th 327.
Necessity and admissibility of expert testimony to establish malpractice or breach of professional standard of care by architect, 47 A.L.R.6th 303.
Admissibility and propriety of use of Abel Assessment for Sexual Interest test, 84 A.L.R.6th 263.
Use and effect of Comparative Bullet Lead Analysis (CBLA) in criminal cases, 92 A.L.R.6th 549.
Requirement for, and admissibility of, expert testimony to determine whether use of particular amount of force in course of making arrest was unreasonable, 95 A.L.R.6th 641.
Propriety of expert historian testimony, 4 A.L.R.7th 4.
Admissibility of expert testimony regarding false confessions, 11 A.L.R.7th 6.
Admissibility and effect of evidence of "psychosocial short stature," "psychosocial dwarfism," or the like in cases involving parent-child relationship, 13 A.L.R.7th 1.
Admissibility of expert testimony on grooming behavior involving sexual conduct with child, 13 A.L.R.7th 9.
Admissibility, sufficiency, and other issues concerning expert evidence to prove or disprove shaken baby syndrome, 16 A.L.R.7th 5.
Admissibility of expert testimony concerning extremist groups and associated persons and organizations, 39 A.L.R.7th Art. 6.