Posted by Susan J. Levy
In a Daubert motion, the non-moving party has the burden of establishing by a preponderance of proof that a proper foundation exists for the admissibility of that party’s proferred expert testimony. Allison v. McGhan Med. Corp., 184 F.3d 1300 (11th Cir. 1999).
The Eleventh Circuit found that the non-movant must persuade the Court that its expert’s testimony satisfies Fed. R. Evid. 702 as recognized in Daubert, so it stands to reason that in Georgia, the non-movant now has the burden of persuading the Court that his expert satisfies the dictates of O.C.G.A. § 24-9-67.1.
Furthermore, the non-movant in a Daubert motion is not entitled to have the court resolve disputed issues of fact in the non-movant’s favor, as in a summary judgment motion, since the issue of whether an expert’s testimony is admissible is not an issue of fact. General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997).