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NEW ELEVENTH CIRCUIT CASE BOLSTERS DAUBERT: A POWERFUL TOOL IN ANY GEORGIA INSURANCE DEFENSE ATTORNEY’S TOOLBOX – Part 1 of a 3-Part Series

Posted by Susan J. Levy

Enacted in 2005, O.C.G.A. § 24-6-67.1 provides the criteria for determining whether an expert witness will be allowed to testify in a civil case. This statute provides in pertinent part:

A witness qualified as an expert, based on training, education, experience etc., may testify only if:
(1) The testimony rests on 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 expert witness has applied the principles and methods reliably to the facts of the case.
O.C.G.A. § 26-6-67.1(b).

As guidance for interpreting and applying this code section, the statute itself refers Georgia Courts to several federal opinions, including Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1973), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). O.C.G.A. § 26-6-67.1(f).

In Daubert, the U.S. Supreme Court stated that the trial court is to act as a “gatekeeper,” whose responsibility it is to ensure that an expert’s testimony is based on reliable foundation and relevant to the subject at issue. Id. at 597.

In Kumho Tire, the Court held that the Daubert “gatekeeping” function applies to not only “scientific” testimony, but to all expert testimony. Kumho Tire, 526 U.S. at 138. The Court suggested that the trial court rely on specific factors, such as testing, peer review, error rates, and “acceptability” in the relevant community. Daubert, supra, at 593-94.

As such, the “Daubert factors” may, at the discretion of the trial judge, be applied when he/she is trying to determine the relevancy and reliability of any expert’s testimony. Id. In Kumho Tire, the Court made it clear that the list of factors enumerated in Daubert was not exhaustive, and that such a list would not necessarily, nor exclusively apply to all experts in every case. Kumho Tire, supra, at 140. The Court also noted that the test of reliability is a flexible one that may well vary from case to case. Id.

For example, in certain cases, it may be appropriate for the trial court to ask “how often an engineering expert’s experience–based methodology has produced erroneous results, or whether such a method is generally accepted in the relevant engineering community.” Id. at 151. It may also be useful to ask an expert whether his “preparation” is of one that others in the field would find acceptable. Id.

To be continued . . .

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