Daubert Challenges to Expert Testimony in Georgia Courts

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A Daubert challenge asks the trial judge to decide, before the jury hears an expert, whether the opinion meets the requirements of OCGA 24-7-702(b). In a civil case the hearing and any ruling must be completed no later than the final pretrial conference, the party offering the expert bears the burden of showing reliability, and the ruling is reviewed for abuse of discretion. Where an injury case needs an expert to prove the standard of care or a causal link, an order excluding the expert can be followed by summary judgment.

Where the Georgia Standard Comes From

Daubert reliability came to Georgia civil cases before the current statute. Under a predecessor provision, former OCGA 24-9-67.1, the Supreme Court of Georgia upheld a trial court’s use of the Daubert standards “because OCGA § 24-9-67.1 is based on Federal Rule 702, which is based on the holding of Daubert,” as it recounted in HNTB Georgia, Inc. v. Hamilton-King, 287 Ga. 641 (2010), describing Mason v. Home Depot U.S.A., 283 Ga. 271 (2008).

OCGA 24-7-702 was enacted in 2011 (HB 24). A 2022 amendment (HB 478), effective July 1, 2022, removed the word “civil” from subsections (a) and (f), set out the helpfulness requirement, previously in the opening words of subsection (b), as new paragraph (b)(1), and rewrote the application requirement now in paragraph (b)(4). The statute provides that, “[e]xcept as provided in Code Section 22-1-14 and in subsection (g) of this Code section, the provisions of this Code section shall apply in all proceedings.” Subsection (f) states the legislature’s intent “that, in all proceedings, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states,” and allows courts to draw from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and “other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.”

What OCGA 24-7-702(b) Requires

A witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if all four conditions are met:

  1. “The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue”;
  2. “The testimony is based upon sufficient facts or data”;
  3. “The testimony is the product of reliable principles and methods”; and
  4. “The expert has reliably applied the principles and methods to the facts of the case.”

Qualification and reliability are separate questions. In HNTB, the trial court found that the plaintiffs’ engineer “was qualified to testify as an engineering expert” but that the plaintiffs “failed to provide any indication of the principles and methods employed by Thomas in reaching his conclusions,” and the Supreme Court upheld the exclusion.

How Courts Weigh Reliability

HNTB applied the predecessor statute, and its reasoning tracks the federal cases that subsection (f) now names. “[T]he trial court acts as a gatekeeper, assessing both the witness’ qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony.” Reliability “is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training,” and “the test of reliability is a flexible one,” with the specific factors, in words from Kumho Tire, “neither necessarily nor exclusively applying to all experts in every case.”

Experience alone did not carry the engineer’s opinion. The engineer conceded that the conclusions rested entirely on “engineering judgment,” had never designed or evaluated a construction plan for a similar bridge project, and conceded that the Manual on Uniform Traffic Control Devices did not require shoulders or lighting on the bridge. The Court wrote: “This is not to say that professional experience cannot provide some evidence of reliability, only that experience, standing alone, does not render reliable all opinions an expert may express.” It held that “regardless of an expert’s experience or qualifications, the proffering party bears the burden of presenting evidence of reliability,” because the alternative “would eviscerate the trial court’s gatekeeper role and allow all expert testimony, even that based on nothing more than the untested opinion of one individual.” Agreeing with the Eleventh Circuit in United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004), it repeated Kumho Tire‘s statement that the aim is to make certain an expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”

A reliable method is not enough if the opinion does not match the question the jury must answer. In Scapa Dryer Fabrics, Inc. v. Knight (Ga. July 5, 2016), the Supreme Court of Georgia applied the former statute and noted that its provisions “were carried forward into the new Evidence Code and now can be found in OCGA § 24-7-702 (b).” It described three aspects a trial court must assess: “the qualifications of the expert, the reliability of the testimony, and the relevance of the testimony.” A worker who had worked at the defendant’s facility as an independent contractor between 1967 and 1973 was diagnosed with mesothelioma almost forty years later. The worker and the worker’s spouse sued, claiming that asbestos exposure at the facility caused the disease, and the defendant disputed that the worker had been exposed to any meaningful level of asbestos there. The jury awarded more than $4 million against the defendant. Their expert testified that every exposure above background levels added to the cumulative exposure and was therefore a cause of the disease, regardless of its extent. The Court held that the plaintiffs had to show that the exposure at the facility made a meaningful contribution, because “a de minimis contribution to an injury is not sufficient to establish legal causation under Georgia law,” so testimony that counted any exposure as a cause did not fit that standard. It reversed the Court of Appeals’ decision upholding the admission of that testimony.

Exclusion and Summary Judgment

HNTB shows how the two connect. Two siblings were injured when a van struck them in a bridge construction zone on Interstate 95, and a third was killed in the same accident. They sued the bridge designer and the general contractor, alleging that the traffic control plans lacked shoulders and proper lighting. The trial court excluded the plaintiffs’ engineer and, “in the absence of admissible expert testimony establishing the standard of care and breach thereof,” granted summary judgment. The Court of Appeals reversed, and the Supreme Court reversed the Court of Appeals, finding “no abuse of the trial court’s discretion in ruling Thomas’ testimony inadmissible.” On review of qualifications, it applied the rule, quoting Moran v. Kia Motors America, 276 Ga. App. 96 (2005), that whether a witness is qualified “is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.”

Timing of the Hearing

“Upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert’s testimony satisfies the requirements of subsections (a) and (b) of this Code section. In all civil proceedings, a hearing and any ruling shall be completed no later than the final pretrial conference contemplated under Code Section 9-11-16” (OCGA 24-7-702(d)).

Frequently Asked Questions

Does the Daubert standard apply in Georgia criminal cases?
Since the 2022 amendment, the section applies “in all proceedings,” subject to its stated exceptions, and the amendment applies to motions made or hearings or trials begun on or after July 1, 2022 (OCGA 24-7-702(a); Ga. L. 2022, p. 201, Section 3).

Does the statute apply in a workers’ compensation hearing?
Not strictly. The section “shall not be strictly applied in proceedings conducted pursuant to Chapter 9 of Title 34,” the workers’ compensation chapter, or in administrative proceedings under Chapter 13 of Title 50 (OCGA 24-7-702(g)).

What extra requirements apply to a medical expert in a malpractice case?
Beyond subsection (b), the expert must have been licensed at the time of the alleged act and must have actual professional knowledge and experience in the area, from active practice or teaching in that specialty for at least three of the last five years, with sufficient frequency, as determined by the judge; the subsection also addresses which professions may testify about which others (OCGA 24-7-702(c)).

Does the statute govern the expert affidavit filed with a malpractice complaint?
Yes. “In all civil proceedings, an affiant shall meet the requirements of this Code section in order to be deemed qualified to testify as an expert by means of the affidavit required under Code Section 9-11-9.1” (OCGA 24-7-702(e)).

  • OCGA 24-7-702(a) through (g); Ga. L. 2011, p. 99 (HB 24); Ga. L. 2022, p. 201 (HB 478); former OCGA 24-9-67.1
  • Scapa Dryer Fabrics, Inc. v. Knight (Ga. July 5, 2016)
  • HNTB Georgia, Inc. v. Hamilton-King, 287 Ga. 641 (2010), describing Mason v. Home Depot U.S.A., 283 Ga. 271 (2008), and quoting Moran v. Kia Motors America, 276 Ga. App. 96 (2005) and United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004)
  • Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)
  • OCGA 9-11-9.1; OCGA 9-11-16 (as referenced in OCGA 24-7-702)

Disclaimer

This article provides general information about expert testimony and Daubert challenges under Georgia law. It is not legal advice and does not create an attorney-client relationship. Whether a particular opinion is admissible depends on the specific expert, the methods used, and the facts of the case. A person involved in a case that depends on expert testimony should consult a licensed Georgia attorney about the particular situation.

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