Daubert Expert Qualifications

[Quinton Hebenstreit]

NorthCarolina State University (NCSU) and the Forensic Technology Center of Excellence (FTCOE) will host a two-part virtual workshop series on the Qualifications of an Expert Witness for Legal Professionals. This workshop series will discuss topics surrounding qualifications of expert witnesses in forensic disciplines under both the Daubert and the Frye standards.

Each workshop will feature a series of presentations, followed by a live question and answer session with each presenter. The presentations will discuss the historical basis for both the Frye standard and Daubert standard, address issues surrounding qualifying expert witnesses, how the admission of expert testimony in the courts has been affected by these standards, and much more! During the workshops, you will hear from a diverse panel of presenters spanning the breadth of legal practitioners, including judges, trial attorneys, professors, attorney generals, and post-conviction litigators.

This no cost, two-part virtual workshop series is open to a wide audience, including legal professionals, criminal justice practitioners, forensic scientists, and anyone interested in how admissibility standards affect expert testimony in the courts. Both parts of this virtual workshop series will be interactive and occur over Zoom, a peer-to-peer platform. Registration for each part of this virtual workshop series will be capped at 500 participants.

North Carolina State University (NCSU) and the Forensic Technology Center of Excellence (FTCOE) hosted a two-part virtual workshop series on the Qualifications of an Expert Witness for Legal Professionals. This workshop series discussed topics surrounding qualifications of expert witnesses in forensic disciplines under both the Daubert and the Frye standards.

Each workshop featured a series of presentations, followed by a question and answer session with each presenter. The presentations discussed the historical basis for both the Frye standard and Daubert standard, addressed issues surrounding qualifying expert witnesses, analyzed how the admission of expert testimony in the courts has been affected by these standards, and much more! During the workshops, attendees heard from a diverse panel of presenters spanning the breadth of legal practitioners, including trial attorneys, professors, attorney generals, and post-conviction litigators.

This no cost, two-part virtual workshop series was open to a wide audience, including legal professionals, criminal justice practitioners, forensic scientists, and anyone interested in how admissibility standards affect expert testimony in the courts.

Thanks to the North Carolina Conference of District Attorneys sponsorship, Part I: The Daubert Standard has been approved for 5 hours of general Continuing Legal Education (CLE) with the North Carolina State Bar. After attending the event, attendees will have 30 days to mail or fax their FTCOE certificate of attendance to the North Carolina State Bar CLE Department for credit and will be responsible for any fees associated with updating their CLE record. Please go here to obtain the correct forms and additional instructions.

If attendees would like to obtain Continuing Legal Education (CLE) credit with the North Carolina State Bar, attendees have 30 days after attending the Part II: The Frye Standard workshop to mail or fax their FTCOE certificate of attendance, agenda, and speaker biographies to the North Carolina State Bar CLE Department. Additionally, attendees will be responsible for any fees associated with updating their CLE record. Please go here to obtain the correct forms and additional instructions.

- Ga. L. 2005, p. 1, 1, not codified by the General Assembly, provided, with respect to former O.C.G.A. 24-9-67.1, the predecessor of O.C.G.A. 24-7-702 and24-7-703, that: "The General Assembly finds that there presently exists a crisis affecting the provision and quality of health care services in this state. Hospitals and other health care providers in this state are having increasing difficulty in locating liability insurance and, when such hospitals and providers are able to locate such insurance, the insurance is extremely costly. The result of this crisis is the potential for a diminution of the availability of access to health care services and a resulting adverse impact on the health and well-being of the citizens of this state. The General Assembly further finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers. The General Assembly further finds that certain needed reforms affect not only health care liability claims but also other civil actions and accordingly provides such general reforms in this Act."

Trial court erred in declaring former O.C.G.A. 24-9-67.1(f) (see now O.C.G.A. 24-7-702,24-7-703) unconstitutional on the ground that the former statute violated the principle of separation of powers as the suggestion in the former statute that Georgia "may" consider the decisions of other courts on a subject did not invade the province of the judiciary because it was not couched in mandatory terms and merely stated a principle of law regularly employed by Georgia courts. Further, the permissive suggestion in former 24-9-67.1(f), that the courts could consider federal interpretations of the cases on which federal rules and former 24-9-67.1(f) were based contained no words of command and did not seek to enforce a particular construction of the former statute on the courts. Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603 (2008) (decided under former O.C.G.A. 24-9-67.1)

In a personal injury suit wherein the trial court excluded the testimony of plaintiffs' two expert witnesses upon application of former O.C.G.A. 24-9-67.1 (see now O.C.G.A. 24-7-702,24-7-703), the trial court did not err in rejecting plaintiffs' equal protection challenge since plaintiffs could not establish the necessary element of an equal protection claim that plaintiffs were situated similarly to those being treated differently. For purposes of evidentiary standards, only those accused of the same offense are similarly situated in the criminal law arena, only those asserting or defending against the same cause of action are similarly situated in the civil law arena, and the parties to civil cases were not similarly situated to those engaged in criminal prosecutions. Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603 (2008)(decided under former O.C.G.A. 24-9-67.1)

O.C.G.A. 24-7-702(c)(2)(A), governing expert qualifications in medical malpractice cases, was not unconstitutionally vague, did not violate equal protection or separation of powers, did not make irrevocable grants of special privileges and immunities, and was not a special law; however, the trial court erred in rejecting an expert simply because the expert had not performed the specific procedure at issue. The proper consideration was the expert's level of knowledge. Zarate-Martinez v. Echemendia, 299 Ga. 301, 788 S.E.2d 405 (2016).

- After a trial court found that an expert's testimony failed the first element of Daubert because the expert's theory was essentially untestable and had not been tested, the trial court properly exercised the court's discretion in weighing the fourth Daubert factor - whether the theory had attained general acceptance within the scientific community - less heavily than the other three Daubert factors. Butler v. Union Carbide Corp., 310 Ga. App. 21, 712 S.E.2d 537 (2011) (decided under former O.C.G.A. 24-9-67.1)

As the trial court's finding that the plaintiff's expert was a "quintessential expert for hire" was supported by the evidence, it was within the trial court's discretion to apply the Daubert factors with greater rigor in determining the admissibility of the expert's opinion. Butler v. Union Carbide Corp., 310 Ga. App. 21, 712 S.E.2d 537 (2011) (decided under former O.C.G.A. 24-9-67.1)

- After the independent contractor was diagnosed with mesothelioma, and the plaintiffs sued a textile manufacturer claiming that the manufacturer negligently exposed the contractor to asbestos and caused the contractor's mesothelioma, the plaintiffs' expert witness testimony was improperly admitted because the expert's testimony improperly told the jury that it was unnecessary to resolve the extent of asbestos exposure at the manufacturer's facility and that any asbestos exposure was a contributing cause of the mesothelioma as the plaintiffs had to show that exposure to asbestos at the facility made a meaningful contribution to the contractor's mesothelioma, and a de minimis contribution was not sufficient to establish legal causation. Scapa Dryer Fabrics, Inc. v. Knight, 299 Ga. 286, 788 S.E.2d 421 (2016)(decided under former O.C.G.A. 24-9-67.1(b)).

- In a suit for simple negligence, negligence per se, wrongful death, intentional infliction of emotional distress, breach of contract, and negligent supervision and training, summary judgment was improperly granted to the defendants because the plaintiffs were not required to establish that the plaintiffs' expert met the requirements of O.C.G.A. 24-7-702(c)(2)(D) as the plaintiffs' suit was not a medical malpractice action as the facility where the plaintiffs' son collapsed was a day facility that provided education, life skills, job assistance, and rehabilitation services to people with mental and physical disabilities, and the individual defendants listed in the case were non-medical personnel and personal care givers. Blake v. KES, Inc., 336 Ga. App. 43, 783 S.E.2d 432 (2016).

- Trial court did not err in excluding expert testimony of the value of a vehicle in the vehicle's defective condition on the date of sale because there was no evidence that the expert witness's method was relied upon more widely in the automotive field, nor of the method's known rate of error, nor whether it had been reviewed by qualified experts other than its creators. Moran v. Kia Motors Am., Inc., 276 Ga. App. 96, 622 S.E.2d 439 (2005) (decided under former O.C.G.A. 24-9-67.1)

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