Category Archives: Expert Testimony

Experts and Apportionment in Georgia: Lessons from Brown v. Tucker, Part II

By | Expert Testimony | No Comments

Tucker was a passenger in a pickup truck driven by Brown, who struck a tractor-trailer rig parked by the road. The passenger, Tucker, sued Brown for her resulting injuries, and the jury returned a verdict of $2 million in damages, but apportioned 40 percent fault to the nonparty tractor-trailer driver and 60 percent to Brown, Brown v. Tucker, 337 Ga. App. 704 (7/5/16).

On appeal, Brown argued that the trial court erred in granting the plaintiff’s motion in limine to exclude a state trooper’s opinion testimony that the cause of the collision was the tractor-trailer’s protrusion into the roadway, rather than Brown’s inability to see where she was going.

This is the question the defendant wanted to ask the trooper:

Q: Based on your experience and training, what opinion, if any, do you have as to what the cause of this accident was?

A: Okay. The parked tractor-trailer being partially in the roadway.

The trial court excluded that question, but The Court of Appeals noted that the trooper was allowed to “testify that in his opinion, based on his investigation, the trailer that Brown struck was protruding some distance into the road, and the sun was in Brown’s eyes.”

The Court of Appeals pointed out that his conclusion about those factors was a proper matter for the trooper’s testimony, but “the jury in this case did not require an expert’s opinion regarding whether the tractor-trailer’s location was “the” ultimate cause of the collision,” and found no error in exclusion of his testimony about the cause, holding that:

“Although an experienced police officer can be qualified as an expert to give opinion testimony about the cause of a traffic accident, it remains settled law in Georgia that expert opinion testimony is unnecessary and improper if a jury would be able to ascertain the cause of the accident on its own and without any such testimony.”

337 Ga. App. at 707.

Brown also argued that the trial court erred in excluding evidence that Tucker had hired an expert but chose not to call him, “asserting that the jury could have reasonably inferred from Tucker’s failure to call the expert that the expert’s report must have been unfavorable to Tucker.”

The Court of Appeals tiptoed around this question, as Georgia case law is conflicting, but found no reversible error:

“This court has a long line of condemnation cases addressing whether a party may place the opinions of an opposing party’s former expert before the jury. We have held that such an expert is subject to subpoena regardless of who initially hired him, but that all questions relating to the expert’s previous employment by the opposing party were irrelevant and inadmissible.”

337 Ga. App. at 709.

However, the Supreme Court has said in criminal cases that the State “may argue in closing that the jury may draw a negative inference from a criminal defendant’s failure to call as a witness an expert whom the defendant previously hired,” 337 Ga. App. at 710.

See Blige v. State, 264 Ga. 166, 168 (2) (441 SE2d 752) (1994) (Blige 4) and Blige v. State, 263 Ga. 244, 245 (2) (430 SE2d 761) (1993) (Blige 2)

Brown’s lawyer was allowed to argue in closing that Tucker had failed to rebut the opinions presented by Brown’s accident reconstructionist, and the jury allocated 40% of the fault to the tractor-trailer driver, so no harm was done by not allowing Brown to argue a negative inference from the plaintiff’s failure to call her expert, 337 Ga. App. at 711.

Defective Expert Affidavit in Georgia Can be Cured by Substituting Another Expert’s Affidavit

By | Expert Testimony | No Comments

The expert affidavit law, O.C.G.A. § 9-11-9.1, which was originally enacted in 1987, supposedly to reduce litigation by weeding out frivolous lawsuits, is still spawning litigation nearly 30 years later.  What if the plaintiff’s expert is deemed not competent to testify in a medical malpractice case under the stringent requirements of O.C.G.A. § 24-7-702(c)(2)   because he had not been in active practice for at least three of the preceding five years, although he was a Board certified neurosurgeon?  The Supreme Court faced this question in Gala v. Fisher, 2015 Ga. LEXIS 198 (3/27/15), and held that in a professional malpractice action, when a plaintiff files a complaint accompanied by an affidavit from a person not competent to testify as an expert in the action, O.C.G.A. § 9-11-9.1(e) permits the plaintiff to cure that defect by filing an amended complaint with the affidavit of a second, competent expert, within 30 days of service of the motion alleging that the affidavit is defective.

Georgia Court of Appeals Rejects Exclusion of Expert’s Testimony

By | Expert Testimony | No Comments

In a significant case interpreting the 2005 tort reform laws, the Georgia Court of Appeals rejected the trial court’s limitation on the plaintiff’s expert testimony.  In Lavelle v. Laboratory Corp. of America, No. A13A1722, 2014 Ga. App. LEXIS 260 (3/28/14), a husband sued a physician, his medical practice, and a lab, seeking damages for negligence in failing to diagnose and treat his deceased wife’s cervical cancer in a timely fashion. The trial court granted the lab’s motion to exclude the husband’s expert’s testimony and granted partial summary judgment for the lab as to breach of the standard of care, and the husband appealed.  The Court of Appeals vacated the grant of the motion to exclude the expert testimony and the grant of partial summary judgment and remanded the case to the trial court for further proceedings.
The husband’s expert, a staff pathologist and professor of pathology oncology at Johns Hopkins with experience in the fields of cytotechnology and interpretive slides, had testified that the lab breached the applicable standard of care based on her focused reviews of the wife’s Papanicolaou (Pap) smear test slides, which showed abnormal cells. She also testified that two blinded reviews of the slides confirmed her opinion. The trial court excluded evidence of the two blinded reviews on the ground that they did not satisfy the reliability requirements of former O.C.G.A. § 24-9-67.1 and Daubert. The court held that the trial court erred in failing to consider the expert’s focused reviews of the slides apparently finding that the only acceptable methodology for reaching an opinion about whether a cytotechnologist breached the applicable standard of care was the blinded review methodology.  The Court of Appeals concluded that only methodology the trial court found acceptable was “promoted and promulgated” the cytotechs own professional association, and that was an abuse of discretion:

“In excluding Dr. Rosenthal’s opinion, the trial court abused her discretion . . . the trial court erred to the extent she held that the only acceptable methodology for reaching an opinion about whether a cytotech breached the applicable standard of care was the blinded review methodology promoted and promulgated by a professional association representing cytotechs. We are aware of no legal authority — legislative or judicial — that directs the specific methodology an expert must use to establish a breach of the standard of care in a professional malpractice case.”

The Court held that the trial court should have conducted a proper Daubert analysis of the methodology that the expert employed, the focused reviews.  This case could have broad application beyond medical malpractice cases.

What should you look for when choosing a lawyer? How to Choose a Lawyer
Nav Map