Expert Witnesses in Georgia Injury Cases: Who You Need and Why

Published Read 6 min read

On this page

Whether a Georgia injury case needs an expert, and which one, depends on the question the jury has to answer. A lay jury can decide some questions from common experience. A medical question that can be answered accurately only with specialized knowledge requires an expert, and so do a professional’s standard of care and, in the cases below, a structure’s design, the sequence of a crash, and a loss of earning capacity.

When Causation Needs a Medical Expert

The Supreme Court of Georgia stated the rule in Cowart v. Widener, 287 Ga. 622 (2010): “expert evidence is required where a ‘medical question’ involving truly specialized medical knowledge (rather than the sort of medical knowledge that is within common understanding and experience) is needed to establish a causal link between the defendant’s conduct and the plaintiff’s injury.” The test is whether a lay jury “would have to know the answers to one or more ‘medical questions’ that, as the case law has defined that term, can be answered accurately only by witnesses with specialized expert knowledge.”

The Court illustrated both sides. It described Jordan v. Smoot, 191 Ga. App. 74 (1989), as holding that “whether an automobile collision caused a backache later the same day is not the type of medical question that requires expert testimony.” It described Allstate Insurance Co. v. Sutton, 290 Ga. App. 154 (2008), as a case in which plaintiffs alleging respiratory ailments from mold in their home lost on summary judgment for want of expert medical testimony linking the ailments to the mold. In Cowart itself, whether a driver’s failure to render aid could have prevented a death from internal bleeding was a specialized medical question, and without expert evidence the defendants were entitled to summary judgment.

How Certain a Medical Opinion Must Be

In Zwiren v. Thompson, 276 Ga. 498 (2003), the Supreme Court held that “Georgia case law requires only that an expert state an opinion regarding proximate causation in terms stronger than that of medical possibility, i.e., reasonable medical probability or reasonable medical certainty.” It suggested a jury charge stating that an expert’s causation opinion “cannot be based on speculation or possibility” and “must be based on reasonable medical probability or reasonable medical certainty.”

A Professional’s Standard of Care

When a claim alleges professional malpractice against a professional listed in the statute, the plaintiff must file with the complaint an expert’s affidavit, “which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim” (OCGA 9-11-9.1(a)). The listed professions include medical doctors, nurses, dentists, chiropractors, pharmacists, architects, professional engineers, attorneys, and veterinarians (OCGA 9-11-9.1(g)), and the affiant must meet the requirements of OCGA 24-7-702 (OCGA 24-7-702(e)).

In a medical malpractice action, the expert must also have been licensed where the expert practiced or taught when the alleged act occurred, must have practiced or taught in the specialty for at least three of the last five years, and must be of the same profession as the defendant unless an exception applies (OCGA 24-7-702(c)). In Hankla v. Postell, 293 Ga. 692 (2013), a board-certified obstetrician testified for the defense about the standard of care of a certified nurse midwife. The Supreme Court held that “a physician or other health care provider, regardless of her experience in ‘active practice,’ must satisfy either the ‘same profession’ requirement of OCGA § 24-7-702 (c) (2) (C) or the ‘supervision’ requirement of subparagraph (c) (2) (D),” and affirmed.

Design and Engineering

An engineer’s opinion that rests only on the engineer’s own judgment, without criteria a court can use to measure its reliability, can be excluded, and without admissible expert testimony on the standard of care a design claim can end on summary judgment. In HNTB Georgia, Inc. v. Hamilton-King, 287 Ga. 641 (2010), people struck by a van in a bridge construction zone on Interstate 95 sued the designer and contractor. Applying the expert statute then in effect, OCGA 24-9-67.1, the trial court excluded their engineer and, finding no admissible expert testimony on the standard of care and its breach, granted summary judgment. The Supreme Court stated that it could not say the decision to exclude the engineer’s testimony “was a manifest abuse of discretion,” noting that the engineer “conceded, however, that his conclusions are based entirely on his ‘engineering judgment,’ unsupported by any criteria by which the court could measure its reliability,” and it reversed the Court of Appeals.

How the Crash Happened: The Investigating Officer

In Fortner v. Town of Register, 289 Ga. App. 543 (2008), the Court of Appeals, quoting earlier decisions, restated that “a police officer with investigative training and experience on automobile collisions is an expert,” with “the credibility and weight to be given his testimony” left to the jury. The court added that “[s]uch an officer is an expert even if he is not trained to reconstruct traffic accidents,” and treated as admissible an officer’s opinion on the cause of the accident that was “based on his examination of physical evidence at the scene, and not solely on statements of witnesses.”

Lost Earning Capacity: The Economist

Evidence of diminished earning capacity, including an economist’s testimony, can be admitted. In Michaels v. Kroger Co., 172 Ga. App. 280 (1984), the trial court refused to let the injured plaintiff and the plaintiff’s economist testify about the plaintiff’s diminished earning capacity. The Court of Appeals held that “[t]he trial court erred in excluding the plaintiff’s evidence on diminished earning capacity,” and reversed.

The Test Every Expert Must Meet

Any expert’s opinion must satisfy OCGA 24-7-702(b): the expert’s knowledge must help the jury understand the evidence or decide a fact in issue, the testimony must rest on sufficient facts or data and on reliable principles and methods, and the expert must have applied those methods reliably to the facts of the case. The opinion “may be given on the facts as proved by other witnesses” (OCGA 24-7-702(a)).

Frequently Asked Questions

Can an expert give an opinion on the ultimate issue the jury decides?
Outside the criminal mental-state exception, “testimony in the form of an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact” (OCGA 24-7-704(a)).

What if the filing deadline is days away and a malpractice affidavit cannot be prepared in time?
If the limitation period will expire, or there is a good faith basis to believe it will expire, within ten days of filing, and because of time constraints the plaintiff alleges that an expert affidavit could not be prepared, the plaintiff has 45 days after filing to supplement the pleadings with it. That exception applies only if the plaintiff’s attorney files with the complaint an affidavit swearing that the attorney’s law firm was not retained more than 90 days before the limitation period expired, and the court may not extend the 45 days without the consent of all parties (OCGA 9-11-9.1(b)).

When must a challenge to an expert be decided?
On a party’s motion the court may hold a pretrial hearing on whether the witness qualifies and whether the testimony meets the statute, and in a civil case the hearing and any ruling must be completed no later than the final pretrial conference (OCGA 24-7-702(d)).

  • Cowart v. Widener, 287 Ga. 622 (2010); Jordan v. Smoot, 191 Ga. App. 74 (1989), and Allstate Insurance Co. v. Sutton, 290 Ga. App. 154 (2008) (as described in Cowart)
  • Zwiren v. Thompson, 276 Ga. 498 (2003)
  • OCGA 9-11-9.1(a), (b), (g); OCGA 24-7-702(a), (b), (c), (d), (e); OCGA 24-7-704(a)
  • Hankla v. Postell, 293 Ga. 692 (2013)
  • HNTB Georgia, Inc. v. Hamilton-King, 287 Ga. 641 (2010)
  • Fortner v. Town of Register, 289 Ga. App. 543 (2008)
  • Michaels v. Kroger Co., 172 Ga. App. 280 (1984)

Disclaimer

This article provides general information about expert witnesses under Georgia law. It is not legal advice and does not create an attorney-client relationship. Whether a case needs an expert, and which kind, depends on the claim and the specific facts. A person injured in an accident should consult a licensed Georgia attorney promptly about the particular situation.

Related posts:

  1. Discovery in Georgia PI Cases: Interrogatories, Depositions, and Requests The period between the filing of a Georgia injury complaint and a trial date is shaped by Civil Practice Act sections that attach consequences to silence: a request for admission......
  2. Bicycle vs. Pedestrian Collisions on Shared Paths When a cyclist and a walker collide on a greenway or other shared path, no motor vehicle is involved, and the claim is a collision between two people on a......
  3. Drunk Driving Accident Victims: Pursuing Punitive Damages A person hurt by a drunk driver in Georgia can seek compensation for what the crash cost and, separately, punishment for the driver's conduct. Punishment has rules of its own.......
  4. Motions for Summary Judgment in Georgia PI Litigation A motion for summary judgment asks a Georgia court to end a claim, or part of one, on the paper record without a jury, and a plaintiff who cannot point......
  5. Social Host Liability in Georgia: When Party Hosts Face Lawsuits A guest leaves a party, drives, and causes a crash, and the injured person asks whether the host is responsible. Georgia answers through one statute, OCGA 51-1-40, and for a......
  6. Weather-Related Accidents: Liability When Roads Are Dangerous After a crash in rain or fog, the other driver may blame the weather. Georgia's traffic code names weather in its rules on speed, following distance, and headlights, and Georgia......
  7. Rideshare Accident Claims: Uber and Lyft Passenger Rights When a rideshare trip ends in a collision, the passenger's first practical question is which insurance answers, and Georgia answers part of that question by statute. OCGA 33-1-24 requires a......
  8. What to Expect at a Georgia Personal Injury Trial A Georgia personal injury trial moves through stages that the Code fixes at several points. The parties strike a jury from a panel, each side examines and cross-examines witnesses, either......
  9. First-Party vs Third-Party Claims: Which Insurance Pays in Georgia? After an injury, an insurance claim runs one of two ways. A first-party claim is made on the injured person's own policy. A third-party claim is made against the person......
  10. Bicycle Accidents Involving Children in Georgia A child hurt on a bicycle is measured against a different statutory standard of care than an adult, a statute says a helmet violation is not evidence of negligence or......
  11. How Georgia’s Collateral Source Rule Protects Your Recovery When health insurance paid part of an injured person's medical bills, what the jury may hear about those payments in Georgia depends on when the claim arose. For causes of......
  12. Horseback Riding Injury Claims in Georgia A rider hurt at a Georgia stable meets a statute before anything else: an equine activity sponsor, an equine professional, "or any other person" "shall not be liable for an......
  13. Elder Abuse Civil Claims in Georgia: Holding Caregivers and Facilities Accountable Which Georgia statutes apply to harm done to an older person depends first on where the person lives. The Disabled Adults and Elder Persons Protection Act defines abuse, neglect, and......
  14. Fireworks Injury Claims in Georgia Who answers for a fireworks injury in Georgia depends on who controlled the risk: the person who lit the device, the operator of a permitted public display, or the company......
  15. Bus Accidents: Public Transit Injury Claims When a bus passenger is hurt in a sudden stop, a fall while boarding, or a crash, who operates the bus shapes the claim from the start. The standard of......
  16. Crosswalk Accidents: Pedestrian Right-of-Way in Georgia When a driver hits a pedestrian in a crosswalk, fault is measured by Georgia's crosswalk rules, and they assign duties to both sides. A driver must stop and remain stopped......

Leave a comment

Your email address will not be published. Required fields are marked *