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NEW ELEVENTH CIRCUIT CASE BOLSTERS DAUBERT: A POWERFUL TOOL IN ANY GEORGIA INSURANCE DEFENSE ATTORNEY’S TOOLBOX – Part 2 of a 3-Part Series

Posted by Susan J. Levy

In Wilson v. TASER International, Inc., Appeal No. 08-13810 (11th Cir. 2008), the Eleventh Circuit Court of Appeals affirmed the District Court’s Order granting TASER’s Daubert Motion to Exclude the Plaintiff’s expert on the grounds that his opinions were unreliable. The Court’s willingness to scrutinize the qualifications of Plaintiff’s expert and to examine the basis for his opinions, particularly in a case where the expert was not merely promoting junk science, should encourage defense counsel to file Daubert motions whenever the facts allow.

In Wilson v. TASER, decided on December 16, 2008, Plaintiff was a Georgia State Patrol Trooper who volunteered to be shocked with a TASER during a class at the Georgia Public Safety Training Center in Forsyth, Georgia. Plaintiff argued that the shock caused two compression factors of his thoracic spine and in support, offered the testimony of his treating physician, Dr. Edward Meier.

Dr. Meier, a specialist in family practice and occupational medicine, had been treating Plaintiff since the day following the injury and issued a report based on his treatment, his review of Emergency Room records, a radiological report, a consultation with another physician, and an article entitled Thoracic Compression Fractures as a Result of Shock From a Conducted Energy Weapon: A Case Report.

Nevertheless, the District Court granted TASER’s Daubert motion and excluded Dr. Meier’s testimony on the grounds that it was unreliable. The Eleventh Circuit affirmed, finding that Dr. Meier “did not demonstrate that that his opinion that TASER exposure may cause compression fractures is testable; he did not offer an error rate for his opinion; he did not show any evidence that his opinion has been peer reviewed or that he used a peer-reviewed source to reach his opinion; and finally, he did not show the general acceptance of his option.” Wilson at p. 13. (citing Daubert, 509 U.S. 579; Bowers v. Norfolk Southern Corp., 537 F. Supp. 2d. 1343, 1353-54 (M.D. Ga. 2007).

Without competent expert medical testimony to a reasonable degree of medical certainty that the TASER caused his injuries (or alternatively, that a possible causal relationship existed in conjunction with non-expert testimony showing a causal relationship), the Court affirmed summary judgment in favor of TASER.

The lesson to be learned from the Wilson case is that defense counsel should not simply file a perfunctory Daubert motion when the facts are present to support a strong motion to exclude Plaintiff’s expert. Daubert motions can and should be used effectively. When successful, Daubert motions can cripple your opponent’s case.

To be continued . . .

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