2020 Georgia Code
Title 24 - Evidence
Chapter 7 - Opinions and Expert Testimony
§ 24-7-702. Expert Opinion Testimony in Civil Actions; Medical Experts; Pretrial Hearings; Precedential Value of Federal Law

Universal Citation: GA Code § 24-7-702 (2020)
  1. Except 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 civil proceedings. The opinion of a witness qualified as an expert under this Code section may be given on the facts as proved by other witnesses.
  2. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if:
    1. The testimony is based upon sufficient facts or data;
    2. The testimony is the product of reliable principles and methods; and
    3. The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.
  3. Notwithstanding the provisions of subsection (b) of this Code section and any other provision of law which might be construed to the contrary, in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:
    1. Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and
    2. In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
      1. The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or
      2. The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; and
      3. Except as provided in subparagraph (D) of this paragraph:
        1. Is a member of the same profession;
        2. Is a medical doctor testifying as to the standard of care of a defendant who is a doctor of osteopathy; or
        3. Is a doctor of osteopathy testifying as to the standard of care of a defendant who is a medical doctor; and
      4. Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff, has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider. However, a nurse, nurse practitioner, certified registered nurse anesthetist, nurse midwife, physician assistant, physical therapist, occupational therapist, or medical support staff shall not be competent to testify as to the standard of care of a physician.
  4. 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. Such hearing and ruling shall be completed no later than the final pretrial conference contemplated under Code Section 9-11-16.
  5. 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.
  6. It is the intent of the legislature that, in all civil proceedings, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. 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.
  7. This Code section shall not be strictly applied in proceedings conducted pursuant to Chapter 9 of Title 34 or in administrative proceedings conducted pursuant to Chapter 13 of Title 50.

(Code 1981, §24-7-702, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Cross references.

- Statute not applicable to valuation of condemned property, § 22-1-14.

Competent expert testimony required in establishing payment standard or reimbursement criteria, § 51-1-52.

Testimony by expert witnesses, Fed. R. Evid. 702.

Editor's notes.

- 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."

Law reviews.

- For annual 11th Circuit survey of evidence law, see 56 Mercer L. Rev. 1273 (2005). For article, "Georgia's New Expert Witness Rule: Daubert and More," see 11 Ga. St. B.J. 16 (2005). For annual survey of evidence law, see 57 Mercer L. Rev. 187 (2005). For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005). For annual survey of evidence law, see 58 Mercer L. Rev. 151 (2006). For annual survey of product liability law, see 58 Mercer L. Rev. 313 (2006). For survey article on evidence law, see 59 Mercer L. Rev. 157 (2007). For survey article on product liability law, see 59 Mercer L. Rev. 331 (2007). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For survey article on product liability law, see 60 Mercer L. Rev. 303 (2008). For survey article on tort law, see 60 Mercer L. Rev. 375 (2008). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008). For annual survey on evidence, see 61 Mercer L. Rev. 135 (2009). For annual survey on product liability, see 61 Mercer L. Rev. 267 (2009). For annual survey on trial practice and procedure, see 61 Mercer L. Rev. 363 (2009). For annual survey of law on product liability, see 62 Mercer L. Rev. 243 (2010). For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010). For article, "Symposium on Evidence Reform: The Curious Case of Differing Literary Emphases: The Contrast Between the Use of Scientific Publications at Pretrial Daubert Hearings and at Trial," see 47 Ga. L. Rev. 837 (2013). For annual survey on product liability, see 65 Mercer L. Rev. 221 (2013). For annual survey on torts law, see 66 Mercer L. Rev. 189 (2014). For annual survey on trial practice and procedure, see 66 Mercer L. Rev. 211 (2014). For article, "Fisher v. Gala: O.C.G.A. § 9-11-9.1(e) Keeping Malpractice Claims Afloat," see 66 Mercer L. Rev. 817 (2015). For annual survey of tort law, see 68 Mercer L. Rev. 279 (2016). For annual survey on product liability, see 69 Mercer L. Rev. 231 (2017). For article, "Non-Physician vs. Physician: Cross-Disciplinary Expert Testimony in Medical Negligence Litigation - Who Knows the Standard of Care?," see 35 Ga. St. U.L. Rev. 679 (2019). For annual survey on construction law, see 71 Mercer L. Rev. 57 (2019). For annual survey on product liability: a two-year survey, see 71 Mercer L. Rev. 223 (2019). For comment, "Georgia's Codification of Daubert: Narrowing the Admissibility of Novel Scientific Evidence in Georgia?," see 23 Ga. St. U.L. Rev. 481 (2006).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 24-9-67.1 are included in the annotations for this Code section.

Constitutionality.

- Statement of intent in former O.C.G.A. § 24-9-67.1(f) (see now O.C.G.A. §§ 24-7-702,24-7-703) was not a delegation of legislative power; and, the application of the evidentiary rules established by it, did not violate the constitutional prohibition against retroactive laws. 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)

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)

Trial court properly found that former O.C.G.A. § 24-9-67.1(a) and (b)(1) (see now O.C.G.A. §§ 24-7-702,24-7-703)were contradictory in that paragraph (b)(1) limited experts to relying on potentially admissible facts and data, whereas subsection (a) stated that facts and data relied upon need not be admissible. Since the two provisions could not be harmonized and, read together, they rendered the former statute unconstitutionally vague; however, the trial court was not required to strike the former statute in the statute's entirety. 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).

Use of word "or" or "and" in former statute.

- Legislature's use of the word "or" between former O.C.G.A. § 24-9-67.1(c)(2)(A) and (c)(2)(B) (see now O.C.G.A. §§ 24-7-702,24-7-703), followed by the legislature's use of the word "and" between former § 24-9-67.1(c)(2)(B) and (c)(2)(C), indicated that a medical expert must show either active practice or teaching for at least three of the last five years, but that whichever of these may be the case, the expert must also be a member of the same profession as the person whose performance the expert was evaluating. For the purposes of former § 24-9-67.1, a pharmacist was not a member of the same profession as a medical doctor. Smith v. Harris, 294 Ga. App. 333, 670 S.E.2d 136 (2008), cert. denied, No. S09C0428, 2009 Ga. LEXIS 328 (Ga. 2009) (decided under former O.C.G.A. § 24-9-67.1)

Interpretation of paragraph (c)(2).

- Georgia Supreme Court views the requirements of O.C.G.A. § 24-7-702 subparagraphs (c)(2)(A) and (c)(2)(B) as together being conjunctive with subparagraphs (c)(2)(C) and (c)(2)(D) and, thus, holds that, to be qualified to testify as an expert, the proffered witness must be a member of the same profession as the defendant whose conduct is at issue, or be a physician satisfying the supervision requirements of subparagraph (c)(2)(D). Hankla v. Postell, 293 Ga. 692, 749 S.E.2d 726 (2013).

Requirements of O.C.G.A. § 24-7-702(c) do not apply to causation testimony. Callaway v. O'Connell, 44 F. Supp. 3d 1316 (M.D. Ga. Aug. 29, 2014).

Federal interpretation on application of Daubert standard.

- Citing the Eleventh Circuit opinion of McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004), and applying the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and subsequent cases applying Daubert, the Court of Appeals held that the trial court properly applied the Daubert factors and did not abuse the court's discretion in admitting expert testimony under former O.C.G.A. § 24-9-67.1. Cotten v. Phillips, 280 Ga. App. 280, 633 S.E.2d 655 (2006), cert. denied, No. S06C1966, 2007 Ga. LEXIS 112 (Ga. 2007) (decided under former O.C.G.A. § 24-9-67.1)

Noting that "it is proper to consider and give weight to constructions placed on the federal rules by federal courts when applying or construing a statute based on those rules", and that since former O.C.G.A. § 24-9-67.1(b) "was based on Fed. R. Evid. Rule 702, which in its present form is based on the holdings in . . . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and to the many cases applying Daubert, including Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999)", it was appropriate to apply the standards of Daubert in determining whether a witness is qualified to render an opinion as an expert. 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)

Application of Daubert standard.

- 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)

Expert's testimony on legal causation in mesothelioma case was improperly allowed.

- 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)).

Trial court's denial of Daubert motion presumed correct.

- Trial court's evidentiary ruling, denying a property owner's Daubert motion to exclude a bank's appraiser's expert testimony pursuant to former O.C.G.A. § 24-9-67.1(b) (see now O.C.G.A. §§ 24-7-702,24-7-703), was presumed correct since no transcript from the hearing thereon appeared in the record. Vill. at Lake Lanier, LLC v. State Bank & Trust Co., 314 Ga. App. 498, 724 S.E.2d 806 (2012) (decided under former O.C.G.A. § 24-9-67.1)

Applicability to torts other than malpractice claim.

- 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).

No error in excluding expert testimony.

- 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)

In an action filed pursuant to the Federal Employer's Liability Act, 45 U.S.C. § 51 et seq., the trial court did not abuse the court's discretion in excluding the testimony of an employee's treating physician as the doctor's conclusions were based on an incomplete medical history of the employee, without considering earlier lung-related illnesses, and while unaware of the employee's prior chemical exposure and treatment by other physicians. Shiver v. Ga. & Fla. Railnet, Inc., 287 Ga. App. 828, 652 S.E.2d 819 (2007), cert. denied, No. S08C0394, 2008 Ga. LEXIS 330 (Ga. 2008) (decided under former O.C.G.A. § 24-9-67.1)

In a patient's medical malpractice action, the testimony of an expert witness was properly excluded as the opinion was based on facts stated in a hypothetical question which were not proven by other witnesses or other competent evidence. Moreover, a motion in limine entered against the patient as to another expert witness's testimony was not addressed on appeal as the patient never called the expert to testify, and thus, the issue was abandoned. Hawkins v. OB-GYN Assocs., P.A., 290 Ga. App. 892, 660 S.E.2d 835 (2008), cert. denied, No. S08C1440, 2008 Ga. LEXIS 713 (Ga. 2008) (decided under former O.C.G.A. § 24-9-67.1)

In a wrongful interference with business relations and slander suit, a trial court properly excluded testimony of plaintiff's expert economist, which the plaintiff claimed would show plaintiff's financial injury as to plaintiff's tortious interference claim as the expert's reliance on the partial sales history of a single agent, along with a letter referencing annualized premiums from the sale of only certain life insurance policies and unsupported representations by another agent, did not provide an adequate basis for the expert's opinion. Am. Southern Ins. Group, Inc. v. Goldstein, 291 Ga. App. 1, 660 S.E.2d 810 (2008), cert. denied, No. S08C1555, 2008 Ga. LEXIS 680 (Ga. 2008) (decided under former O.C.G.A. § 24-9-67.1)

In a will contest, the trial court did not abuse the court's discretion in limiting testimony from the caveatrix's expert toxicologist as to whether a person's functioning level could be determined by that person's responses to general questions as the trial court found that the expert's opinion was based on generalized statistics which would have been of dubious help to the jury. Caswell v. Caswell, 285 Ga. 277, 675 S.E.2d 19 (2009) (decided under former O.C.G.A. § 24-9-67.1)

In a customer's personal injury action against a stylist and a hair salon alleging chemical burns, a motion in limine was properly granted under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) to exclude the customer's expert in chemistry because the expert's testing of hair products and the product's reaction to heat did not exactly replicate the conditions under which the incident occurred; the expert used a peroxide product that was not applied to the customer's hair and used a different type of heat source. Giannotti v. Beleza Hair Salon, Inc., 296 Ga. App. 636, 675 S.E.2d 544 (2009) (decided under former O.C.G.A. § 24-9-67.1)

In a customer's slip and fall case against a dry cleaner establishment, the trial court did not err by denying the customer's motion for a new trial and by excluding the testimony of one of the customer's expert witnesses. The expert was not qualified since the expert was retired and not a licensed physician and the testimony of that expert was cumulative of other expert testimony admitted at trial, therefore, any alleged error was harmless. Muskett v. Sketchley Cleaners, Inc., 297 Ga. App. 561, 677 S.E.2d 731 (2009), cert. denied, No. S09C1422, 2009 Ga. LEXIS 412 (Ga. 2009) (decided under former O.C.G.A. § 24-9-67.1)

Expert's testimony was properly excluded in a medical malpractice suit for corrective bladder surgery for perforations following a hysterectomy because the expert was board certified in geriatrics, and the expert had not been engaged in the active practice of gynecology or urology for three of the five years before the patient's operation. Hope v. Kranc, 304 Ga. App. 367, 696 S.E.2d 128 (2010) (decided under former O.C.G.A. § 24-9-67.1)

As vehicle occupants failed to satisfy the Daubert factors or any other reasonable criteria for purposes of measuring the reliability of their expert witness's conclusions with respect to a vehicle accident that occurred in a construction zone, a trial court did not abuse the court's discretion when the court excluded the witness's testimony under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703); the expert's conclusions were based solely on the expert's own assertions and were unsupported by either the Daubert factors or any other reasonable reliability criteria. HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 697 S.E.2d 770 (2010) (decided under former O.C.G.A. § 24-9-67.1)

It was within the trial court's discretion to exclude an expert witness's testimony because a sister and a brother failed to satisfy the Daubert factors or any other reasonable criteria by which the trial court could measure the reliability of the expert's conclusions; the expert failed to cite any treatise or authority supporting the expert's opinion, and the sister and brother presented no evidence that the expert had any experience that would supply the foundation supporting the expert's conclusions. HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 697 S.E.2d 770 (2010) (decided under former O.C.G.A. § 24-9-67.1)

In a mother's medical malpractice action against a hospital, the trial court did not abuse the court's discretion by finding that the mother's witness was not admissible as an expert on whether any member of the hospital's nursing staff breached the standard of care pursuant to former O.C.G.A. § 24-9-67.1(c)(2)(D) (see now O.C.G.A. §§ 24-7-702,24-7-703) because the witness deposed that the witness did not train or practice as a nurse, did not train nurses, did not supervise nurses outside of normal nurse-physician interactions, and did not hold out to be an expert in nursing or in the standard of care of nurses. Pendley v. S. Reg'l Health Sys., 307 Ga. App. 82, 704 S.E.2d 198 (2010) (decided under former O.C.G.A. § 24-9-67.1)

Trial court did not abuse the court's discretion in granting a motion in limine in a legal malpractice action to exclude a purported expert witness on the standard of care, under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), because the witness, although a member of the state bar, worked as a merchant for a family owned business and was not then engaged in any activities that constituted practicing law in Georgia under O.C.G.A. § 15-19-50. Further, the trial court's misguided analogy to a medical malpractice expert under former § 24-9-67.1(c)(2)(D) did not result in reversible error. Wilson v. McNeely, 307 Ga. App. 876, 705 S.E.2d 874 (2011) (decided under former O.C.G.A. § 24-9-67.1)

Opinion of the plaintiff's expert, a pathologist, failed the first element of Daubert because the expert relied on the theory that any exposure to the asbestos in the defendant's product would contribute to the development of mesothelioma, yet the expert testified that the theory was essentially untestable and had not been tested. Thus, the expert's testimony was properly excluded under former O.C.G.A. § 24-9-67.1(b)(2) (see now O.C.G.A. §§ 24-7-702,24-7-703) since it was not the product of reliable principles and methods. 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)

Trial court did not abuse the court's discretion in refusing to permit a mother's expert on security practices to testify about the content of certain service call lists on which the expert had relied in forming the expert's opinions about the adequacy of security at the complex because the mother made no showing that the circumstances of the various incidents reflected on the lists were substantially similar to the murder of her son, such that those incidents would bear directly upon the question of foreseeability; the lists were confusing, and substantial explanation would have been required for the jury to understand the lists. Raines v. Maughan, 312 Ga. App. 303, 718 S.E.2d 135 (2011), cert. denied, No. S12C0436, 2012 Ga. LEXIS 270 (Ga. 2012) (decided under former O.C.G.A. § 24-9-67.1)

Trial court did not err in determining that the affidavits of a driver's experts were inadequate under former O.C.G.A. § 24-9-67.1(b) (see now O.C.G.A. §§ 24-7-702,24-7-703) to defeat summary judgment in favor of a manufacturer in the driver's products liability action because the affidavits did not describe the facts or data upon which the experts' opinions were based, did not explain the principles or methods the experts used to reach the experts' conclusions about the tire, and did not provide support for a conclusion that the experts had applied those principles and methods reliably in the experts' inspections of the tire. Udoinyion v. Michelin N. Am., Inc., 313 Ga. App. 248, 721 S.E.2d 190 (2011) (decided under former O.C.G.A. § 24-9-67.1)

Trial court did not err in the court's determinations that plaintiffs' expert was not qualified to serve as an expert in the case and that the expert's opinions were not sufficiently reliable on the question of whether a gas company was negligent because the expert failed to cite any treatise or authority supporting the belief that, under readily ascertainable and verifiable standards recognized in the field, the gas company's actions in connection with the explosion fell below the standard of care. Anderson v. Atlanta Gas Light Co., 324 Ga. App. 801, 751 S.E.2d 589 (2013).

In a vehicle collision that resulted in the death of the plaintiffs' four-year-old child, the trial court did not err in excluding the testimony and statistical analyses of the defendant's two experts regarding the overall safety of the challenged design to the overall safety of available alternative designs because the evidence was irrelevant as it concerned the overall safety of various vehicles, but the plaintiffs' claims related only to the safety of the fuel system design in rear impacts; the prejudice and confusion from the proposed testimony outweighed the testimony's probative value; and neither expert satisfied the requirements for the admission of expert testimony. Chrysler Group, LLC v. Walden, 339 Ga. App. 733, 792 S.E.2d 754 (2016), aff'd, 303 Ga. 358, 812 S.E.2d 244 (2018).

Trial court did not abuse the court's discretion by excluding evidence of one appellant's intent as to the reconveyance of certain funds because no abuse of discretion occurred by excluding evidence of a cumulative nature that could have confused the jury about the primary issue under consideration and created a re-trial. Interfinancial Midtown, Inc. v. Choate Constr. Co., 343 Ga. App. 793, 806 S.E.2d 255 (2017).

No error in excluding biochemist's testimony.

- Given the biochemist's failure to conduct any tests, the biochemist's lack of knowledge regarding thermal burns, and the biochemist's failure to review the child's medical records, the trial court was authorized to reject as speculative the biochemist's claim that nothing else could have caused the burns to the child's feet other than the sanitizer used to clean the playground. At best, the biochemist's causation opinions were grounded in the assumption that the bottoms of the child's feet were exposed to the sanitizer, even though the record contained no evidence of exposure to that chemical. Stern v. Pettis, Ga. App. , S.E.2d (Aug. 20, 2020).

Standard for admissibility of expert testimony was governed by former O.C.G.A. § 24-9-67.1(b) (see now O.C.G.A. § 24-7-702), which provided if scientific, technical, or other specialized knowledge would assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert may testify thereto in the form of an opinion or otherwise, if: (1) the testimony was based upon sufficient facts or data which were or will be admitted into evidence at the hearing or trial; (2) the testimony was the product of reliable principles and methods; and (3) the witness had applied the principles and methods reliably to the facts of the case. Levine v. SunTrust Robinson Humphrey, 321 Ga. App. 268, 740 S.E.2d 672 (2013) (decided under former O.C.G.A. § 24-9-67.1)

Qualification as an expert not satisfied.

- Trial court did not err in refusing to qualify the employees' witness as an expert because the witness's testimony provided no evidence, let alone expert testimony, that would preclude summary judgment in favor of the Georgia Department of Human Services, and under former O.C.G.A. § 24-9-67.1(d) (see now O.C.G.A. §§ 24-7-702,24-7-703), the trial court had discretion in determining whether expert testimony was necessary; any use of the witness as an expert in the case was wholly unnecessary because the areas of the expert's specialized knowledge were not issues beyond the ken of lay persons. Forrester v. Ga. Dep't of Human Servs., 308 Ga. App. 716, 708 S.E.2d 660 (2011) (decided under former O.C.G.A. § 24-9-67.1)

Plaintiff's witness was not qualified to testify as an expert in a medical malpractice claim based on injuries and the death of an elderly patient because the witness was completely lacking in recent experience working with the type of patient at issue in the case since the witness never worked in a mental health unit or at any type of extended-stay facility housing elderly patients, and over the prior nine years, the witness had worked in neonatal or pediatric facilities, except for one year when the witness was working in intensive care units. Sanders v. United States, F. Supp. 2d (S.D. Ga. Aug. 26, 2011).

In a deceased patient's family's action against a hospital arising out of an alleged failure to properly treat decubitus ulcers (pressure sores), the expert affidavit failed to comply with O.C.G.A. §§ 9-11-9.1(a) and24-7-702(c)(2); the expert was a coroner with a specialty in forensic pathology and not engaged in the treatment of decubitus ulcers. Hendrix v. Fulton DeKalb Hosp. Auth., 330 Ga. App. 833, 769 S.E.2d 575 (2015).

After the pre-trial detainee died in an isolation cell, and the plaintiffs filed a civil action alleging that the medical defendants committed malpractice, because the trial court did not abuse the court's discretion in finding that the affidavit of the plaintiffs' expert witness was insufficient to satisfy the statutory qualifications for an expert witness, the plaintiffs failed to meet the threshold requirement of filing an affidavit of an expert competent to testify and their medical malpractice claims failed as a matter of law; thus, the trial court properly granted summary judgment in favor of the medical defendants. McKuhen v. TransformHealthRX, Inc., 338 Ga. App. 354, 790 S.E.2d 122 (2016).

Plaintiffs' expert witness was not sufficiently qualified to render an expert opinion in support of their medical malpractice claims because, in contradiction to the expert's affidavits, the expert admitted in the expert's deposition that during the five years prior to the pre-trial detainee's death, the expert did not teach anyone how to monitor or treat inmates going through alcohol withdrawal; that, in Massachusetts, the expert did not provide daily or even regular patient care, and the expert could not estimate the amount of time the expert spent actually caring for patients; and that, in Nevada, the expert admitted the expert did not directly supervise any nurse in a correctional healthcare setting. McKuhen v. TransformHealthRX, Inc., 338 Ga. App. 354, 790 S.E.2d 122 (2016).

Expert must be member of same profession.

- Under former O.C.G.A. § 24-9-67.1(c) (see now O.C.G.A. §§ 24-7-702,24-7-703), the trial court erred in allowing a pharmacist to testify about a physician's negligence. A medical expert had to show either active practice or teaching for three of the last five years, and also had to be a member of the same profession as the person whose performance the expert was evaluating. Smith v. Harris, 294 Ga. App. 333, 670 S.E.2d 136 (2008), cert. denied, No. S09C0428, 2009 Ga. LEXIS 328 (Ga. 2009) (decided under former O.C.G.A. § 24-9-67.1)

Same profession requirement applies to medical experts.

- Georgia Supreme Court construes the same profession requirement to apply to all proffered medical experts, even those experienced in the procedure at issue through active practice. Hankla v. Postell, 293 Ga. 692, 749 S.E.2d 726 (2013).

Appellate court properly held that a trial court abused the court's discretion by allowing an obstetrician/gynecologist to testify as an expert witness regarding a nurse midwife's treatment rendered to a patient because the obstetrician/gynecologist was neither a member of the same profession as the midwife nor supervised midwives as required under O.C.G.A. § 24-7-702. Hankla v. Postell, 293 Ga. 692, 749 S.E.2d 726 (2013).

Qualification requirements under O.C.G.A. § 24-7-702 do not apply to a defendant physician. Chadwick v. Brazell, 331 Ga. App. 373, 771 S.E.2d 75 (2015).

Federal interpretation of expert testimony in state medical malpractice claims brought in federal court.

- Citing the Eleventh Circuit holding in McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004) that, when evaluating expert testimony in Georgia state medical malpractice claims brought in federal court pursuant to supplemental jurisdiction, the matter is substantive and subject to state law, the federal district court held that former O.C.G.A. § 24-9-67.1 was applicable to the medical malpractice action, and relied upon the factors specified in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) for determining admissibility of expert testimony under Fed. R. Evid. 702 in construing former § 24-9-67.1. Dukes v. State, 428 F. Supp. 2d 1298 (N.D. Ga. 2006), aff'd, 212 Fed. Appx. 916 (11th Cir. 2006) (decided under former O.C.G.A. § 24-9-67.1)

Nurse's affidavit insufficient in case alleging physical therapist's negligence.

- Trial court erred in ruling that a registered nurse could provide an expert affidavit regarding a physical therapist's care, given that O.C.G.A. § 9-11-9.1(g) categorized nurses and physical therapists as practicing separate professions, and because an expert was required to meet the conditions of former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) in order to provide a § 9-11-9.1 affidavit. Ball v. Jones, 301 Ga. App. 340, 687 S.E.2d 625 (2009) (decided under former O.C.G.A. § 24-9-67.1)

Certified nurse midwife qualified to testify about standard of care for nurses.

- In a medical malpractice case dealing with a child's permanent disabilities, the hospital's motion for a new trial was improperly granted on the ground that a certified nurse midwife (CNM) could not testify as to the standard of care exercised by the registered professional nurses (RN) because the CNM was a member of the same profession as the hospital's RNs because the Georgia Registered Professional Nurse Practice Act, O.C.G.A. § 43-26-1 et seq., required a CNM to be licensed as a RN, and both RNs and CNMs were regulated by the Georgia Board of Nursing; a review of the regulatory scheme revealed that a CNM was a RN who had advanced training in a specialized area; and the expert affidavit statute listed only nurses, and the statute did not have a separate listing for CNMs. Dempsey v. Gwinnett Hosp. Sys., 330 Ga. App. 469, 765 S.E.2d 525 (2014).

Expert's allegations of standard of care pertained to conduct beyond the scope of nursing care and was excluded.

- In a medical malpractice case against a hospital and emergency room doctor and nurses, expert testimony against the nurses was properly excluded under O.C.G.A. § 24-7-702 because the deviations from the standard of care alleged pertained to conduct that was beyond the scope of nursing care allowed by Georgia law under O.C.G.A. § 43-26-3(8) (defining the practice of nursing). Everson v. Phoebe Sumter Med. Ctr., Inc., 341 Ga. App. 182, 798 S.E.2d 667 (2017).

Affidavit of chiropractor not admissible against physical therapist.

- Trial court erred by finding that the opinion of the patient's expert satisfied O.C.G.A. §§ 9-11-9.1 and former24-9-67.1(c) (see now O.C.G.A. § 24-7-702), because despite the expert testimony that, as allowed by the expert's chiropractic license, the expert had practiced physical therapy for a number of years, chiropractic medicine and physical therapy were not the same professions. Bacon County Hosp. & Health Sys. v. Whitley, 319 Ga. App. 545, 737 S.E.2d 328 (2013) (decided under former O.C.G.A. § 24-9-67.1)

Evidence of expert's personal practices admitted.

- In a medical malpractice case, evidence of an expert's personal practices, unless excludable on other grounds, is admissible both as substantive evidence and to impeach the expert's opinion as to the applicable standard of care. To the extent Johnson v. Riverdale Anesthesia Assocs., 563 S.E.2d 431 (Ga. 2002), held otherwise, it is overruled. Condra v. Atlanta Orthopaedic Group, P.C., 285 Ga. 667, 681 S.E.2d 152 (2009) (decided under former O.C.G.A. § 24-9-67.1)

Opinion of a witness qualified as expert may be given on facts proved by other witnesses. DOT v. Baldwin, 292 Ga. App. 816, 665 S.E.2d 898 (2008) (decided under former O.C.G.A. § 24-9-67.1)

Real estate appraiser qualified to testify.

- In an action involving a permanent nuisance caused by noises from a power plant that used gas-fired combustion turbine units, a certified real estate appraiser with 22 years of experience in the area, described at length the methodology the appraiser used to arrive at a reduction in value for the property at issue as a result of the nuisance and the appraiser's reasons for employing that method, was properly allowed to testify under O.C.G.A. § 24-7-702. Oglethorpe Power Corp. v. Estate of Forrister, 332 Ga. App. 693, 774 S.E.2d 755 (2015).

Licensed contractor could opine what would be revealed by home inspection.

- In a tenant's claim for injuries against the tenant's landlord after a staircase collapsed, the trial court erred in disregarding the tenant's expert's opinion that a pre-purchase structural inspection would have led the landlord to discover the defects; although the expert was not a home inspector, the expert was a licensed residential and commercial contractor. Pajaro v. S. Ga. Bank, 339 Ga. App. 334, 793 S.E.2d 209 (2016).

Striking surveyor's affidavits held proper.

- In a suit between two landowners to enforce the terms of an easement, the trial court did not abuse the court's discretion in excluding two affidavits from a surveyor in determining land elevation as no testimony was offered regarding any knowledge, skill, experience, training, or education the witness possessed in that capacity, and no evidence was presented as to the principles and methods the witness employed including whether the methods were reliable. McGuire Holdings, LLLP v. TSQ Partners, LLC, 290 Ga. App. 595, 660 S.E.2d 397 (2008) (decided under former O.C.G.A. § 24-9-67.1)

Applicability.

- Because former O.C.G.A. § 24-9-67.1(a) (see now O.C.G.A. §§ 24-7-702,24-7-703), which governed expert witness testimony in civil actions, did not apply to probation revocation hearings, the trial court's ruling to permit the expert's testimony regarding the presence of marijuana in a joint seized from the probationer was not erroneous as the state was not required to comply with Daubert to prove the expert's qualifications. Carlson v. State, 280 Ga. App. 595, 634 S.E.2d 410 (2006), cert. denied, No. S06C2099, 2007 Ga. LEXIS 215 (Ga. 2007) (decided under former O.C.G.A. § 24-9-67.1)

Former O.C.G.A. § 24-9-67.1(c) (see now O.C.G.A. §§ 24-7-702,24-7-703) was a procedural, not substantive statute because the former statute did not change the standard of care to be applied in a medical malpractice action or the measure of a plaintiff's recovery; thus, the requirements of the statute were properly applied retroactively in a medical malpractice action in which a patient suffered injuries prior to the effective date of the former statute but filed suit after former § 24-9-67.1(c) became effective. Nathans v. Diamond, 282 Ga. 804, 654 S.E.2d 121 (2007) (decided under former O.C.G.A. § 24-9-67.1)

Construction with other law.

- Upon a proper appeal from a final order, while neither former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) nor O.C.G.A. § 9-11-16 required that a complaint be dismissed or stricken for failing to comply with the terms of those statutes, unlike the Anti-SLAPP statute, codified at O.C.G.A. § 9-11-11.1, because the trial court did not enter a final judgment within the meaning of O.C.G.A. § 9-11-68(b)(1), attorney fees were properly denied; moreover, as to the claim that dismissing and refiling in another court constituted "improper judge shopping," obtaining a different judge was simply the result of the action, not necessarily the reason for doing so. McKesson Corp. v. Green, 286 Ga. App. 110, 648 S.E.2d 457 (2007), cert. denied, No. S07C1602, 2007 Ga. LEXIS 656 (Ga. 2007) (decided under former O.C.G.A. § 24-9-67.1)

In a medical malpractice action, when a doctor was the only expert witness submitted by the suing couple, and the couple did not challenge the trial court's exclusion of another doctor's testimony, their argument that said doctor's testimony should have been admitted as a rebuttal witness was unpersuasive. Thomas v. Peachtree Orthopaedic Clinic, P.C., 290 Ga. App. 869, 660 S.E.2d 758 (2008), cert. denied, No. S08C1373, 2008 Ga. LEXIS 915 (Ga. 2008) (decided under former O.C.G.A. § 24-9-67.1)

Timeliness of motion in limine

- In a customer's personal injury action against a stylist and a hair salon alleging chemical burns, while a motion in limine to exclude the customer's expert in chemistry was not timely under former O.C.G.A. § 24-9-67.1(d) (see now O.C.G.A. §§ 24-7-702,24-7-703), the trial court properly considered the motion and granted the motion as the customer did not make the expert available for deposition until just one week prior to trial. Giannotti v. Beleza Hair Salon, Inc., 296 Ga. App. 636, 675 S.E.2d 544 (2009) (decided under former O.C.G.A. § 24-9-67.1)

Subject matter improper for expert testimony.

- In a negligence action, the trial court erred by allowing the investigating police officer to give expert testimony about the color of the traffic light as the color of the light was a question that average jurors could have answered for themselves, and because the color of the traffic light was the determining factor for assessing negligence, the officer's expert opinion on this issue likely influenced the jury's verdict; thus, based on such error, a new trial was ordered. Purcell v. Kelley, 286 Ga. App. 117, 648 S.E.2d 454 (2007) (decided under former O.C.G.A. § 24-9-67.1)

Federal interpretation on practice area of defendant and expert's qualifications related thereto.

- Following the federal practice on the issue of admissibility of expert testimony under Fed. R. Evid. 702 as developed in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L.E.2d 469 (1993), and its progeny, the Court of Appeals concluded that the language "area of practice or specialty in which the opinion is to be given" in former O.C.G.A. § 24-9-67.1(c)(2), is dictated not by the apparent expertise of the treating physician, but rather by the allegations of the complaint concerning the plaintiff's injury; the statute contemplates that "the expert may very well have a different area of practice than the defendant doctor", and it is thus the expert's qualifications, and not the defendant doctor's area of practice, that control the admissibility of the expert's testimony. Abramson v. Williams, 281 Ga. App. 617, 636 S.E.2d 765 (2006), cert. denied, No. S07C0226, 2007 Ga. LEXIS 91 (2007) (decided under former O.C.G.A. § 24-9-67.1)

Healthcare expert not qualified.

- In a medical malpractice and negligence action by an arrestee against a county, jail medical personnel, a medical lab, and lab personnel, these defendants successfully moved to exclude the testimony of an expert in correctional health on the basis of former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) because the expert was not qualified to testify as to any matter outside correctional health care - specifically, the standard of care in the fields of internal medicine, infectious disease, or laboratory procedures with regard to the arrestee's state law claims; furthermore, the expert's testimony was neither relevant nor reliable under the Daubert analysis, and therefore, it was excluded pursuant to Fed. R. Evid. 702. Dukes v. State, 428 F. Supp. 2d 1298 (N.D. Ga. 2006), aff'd, 212 Fed. Appx. 916 (11th Cir. 2006) (decided under former O.C.G.A. § 24-9-67.1)

Expert retained by the plaintiffs in a medical malpractice action, which was based on the failure to adequately inform a patient of the potential risks and complications connected with a sleep apnea procedure, was not qualified to testify under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) because the expert had not performed the procedure in question on other patients nor did the expert aver that the expert had obtained informed consents for similar procedures. Nathans v. Diamond, 282 Ga. 804, 654 S.E.2d 121 (2007) (decided under former O.C.G.A. § 24-9-67.1)

Trial court did not abuse the court's discretion by dismissing the parents' medical malpractice action because the court correctly found that the purported expert offered by the parents failed to make even one diagnosis of a vascular ring within five years of the date at issue, and had not taught others for at least three of the last five years to diagnose a vascular ring. Spacht v. Troyer, 288 Ga. App. 898, 655 S.E.2d 656 (2007), cert. denied, 129 S. Ct. 726, 172 L. Ed. 2d 726 (2008) (decided under former O.C.G.A. § 24-9-67.1)

Trial court properly refused to admit the testimony of a patient's expert in a case involving a claim of an unnecessary surgical procedure because the expert, who described the physician's medical practice as a "family practice", had no surgical training or expertise. Long v. Natarajan, 291 Ga. App. 814, 662 S.E.2d 876 (2008) (decided under former O.C.G.A. § 24-9-67.1)

In a malpractice and wrongful death case filed against a surgeon and an anesthesiologist, as the expert retained by the decedent's spouse did not teach or practice in the area of post-surgical airway management with sufficient frequency to establish the appropriate level of knowledge to meet the criteria of former O.C.G.A. § 24-9-67.1(c)(2) (see now O.C.G.A. §§ 24-7-702,24-7-703), and lacked training in anesthesiology, the expert's opinion was properly excluded. Dawson v. Leder, 294 Ga. App. 717, 669 S.E.2d 720 (2008) (decided under former O.C.G.A. § 24-9-67.1)

Trial court did not err in determining that an anesthesiologist did not meet the expert-witness qualification requirements set forth in former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) because the anesthesiologist did not meet the licensing requirement for expert witnesses, former § 24-9-67.1(c)(1). Although the anesthesiologist's amended affidavit in support of a medical malpractice complaint indicated that the anesthesiologist held a medical license from Pennsylvania on the date of the alleged negligent act, there was no evidence that the anesthesiologist was practicing in that state, and instead, the anesthesiologist's testimony indicated that the anesthesiologist was practicing medicine in Australia; in order to comply with the licensing requirement of former § 24-7-67.1(c)(1), an expert in a professional malpractice action must be licensed and practicing (or teaching) in one of the states of the United States at the time the alleged negligent act occurred. Craigo v. Azizi, 301 Ga. App. 181, 687 S.E.2d 198 (2009) (decided under former O.C.G.A. § 24-9-67.1)

Estate administrator's federal Tort Claims Act medical malpractice claims against employees of a VA medical center failed as the testimony of the administrator's only expert was properly excluded; Georgia's evidentiary rules for a physician's expert testimony applied, and the administrator's expert was not qualified to testify because of the expert's lack of expertise as a vascular surgeon or in broadly treating a patient suffering from critical ischemia. Dutton v. United States, 621 Fed. Appx. 962 (11th Cir. Ga. 2015)(Unpublished).

Active practice.

- Trial court abused the court's discretion to the extent the court determined that an anesthesiologist did not meet the "active practice" requirements of former O.C.G.A. § 24-9-67.1(c)(2)(A) (see now O.C.G.A. §§ 24-7-702,24-7-703) because once the anesthesiologist received a medical degree and embarked upon a residency in anesthesiology, the anesthesiologist was engaged in the "active practice of such area of specialty" within the meaning of former § 24-9-67.1(c)(2)(A); years spent as a resident physician can count as years of "active practice" for purposes of former § 24-9-67.1(c)(2)(A). Craigo v. Azizi, 301 Ga. App. 181, 687 S.E.2d 198 (2009) (decided under former O.C.G.A. § 24-9-67.1)

Physician's affidavit.

- Fact that a medical expert was not licensed as a medical doctor when the expert executed an expert affidavit to accompany a medical malpractice complaint, pursuant to O.C.G.A. § 9-11-9.1, did not affect the validity of the affidavit or require dismissal of the complaint as licensure was not a required element of such an affidavit under that statutory section or under case law; further, former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), assuming it was applicable to the circumstances, only required that the expert was licensed at the time of the medical negligence, which was the case for the instant expert. Tenet Healthcare Corp. v. Gilbert, 277 Ga. App. 895, 627 S.E.2d 821 (2006) (decided under former O.C.G.A. § 24-9-67.1)

In a professional malpractice case brought by a married couple, an expert's original affidavit was insufficient under O.C.G.A. §§ 9-11-9.1 and former24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), which applied retroactively. Although the expert avowed therein that the expert had been licensed to practice medicine since 1974, the affidavit contained nothing concerning the expert's recent or continuing experience as an orthopedist. Cogland v. Hosp. Auth., 290 Ga. App. 73, 658 S.E.2d 769 (2008) (decided under former O.C.G.A. § 24-9-67.1)

Doctor's affidavit complied with former O.C.G.A. § 24-9-67.1(c) (see now O.C.G.A. §§ 24-7-702,24-7-703) because the plain language of the former statute did not require a license during three of the last five years of practice, but experience in the area of the alleged malpractice and a license at the time of the alleged malpractice. Emory Adventist, Inc. v. Hunter, 301 Ga. App. 215, 687 S.E.2d 267 (2009) (decided under former O.C.G.A. § 24-9-67.1)

Dismissal of medical malpractice suit based on affidavit.

- Trial court erred in granting a hospital's motion to dismiss a survivor's wrongful death action based on O.C.G.A. § 9-11-9.1(e) because a nurse's affidavit that allegedly failed to comply with former O.C.G.A. § 24-9-67.1(c)(2) and (e) (see now O.C.G.A. §§ 24-7-702,24-7-703), because the trial court did not consider the survivor's other affidavit submitted: an unchallenged affidavit from a medical doctor. Piscitelli v. Hosp. Auth. of Valdosta & Lowndes County, 302 Ga. App. 746, 691 S.E.2d 615 (2010) (decided under former O.C.G.A. § 24-9-67.1)

Treating physician's testimony sufficient.

- In a Federal Employers' Liability Act action, testimony of an employee's treating physician was not insufficient under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) because after diagnosing the employee with hepatitis related to chemical exposure, the physician reviewed reports of, inter alia, a toxicologist that the chemical in a leaking train car was hydrogen sulfide and opined as to causation; the physician's opinion was not merely based on the temporal proximity of the chemical exposure to the onset of the employee's symptoms. CSX Transp., Inc. v. McDowell, 294 Ga. App. 871, 670 S.E.2d 543 (2008) (decided under former O.C.G.A. § 24-9-67.1)

Qualification of nurses as expert witnesses.

- Registered nurses and licensed practical nurses who cared for a decedent after the decedent's diagnosis with Alzheimer's disease did not lack qualifications to testify as experts about the decedent's capacity to execute a deed because the law did not require that only physicians be allowed to give testimony regarding a medical issue, but permitted others with certain training and experience to testify on issues within the scope of their expertise, and a licensed practical nurse or registered nurse was qualified to testify as an expert witness within the areas of the nurse's expertise; as to any failure to qualify the witnesses as experts, the question of whether a person possessed the qualifications of an expert witness rested entirely in the sound discretion of the trial court. Smith v. Smith, 281 Ga. 380, 637 S.E.2d 662 (2006) (decided under former O.C.G.A. § 24-9-67.1)

In a medical malpractice action, given the relevant past experience of the patient's expert as a nurse, and the expert's familiarity with the degree and skills required of nurses and other medical staff in giving intermuscular injections, the expert was sufficiently qualified to render an expert opinion in the case. Allen v. Family Med. Ctr., P.C., 287 Ga. App. 522, 652 S.E.2d 173 (2007) (decided under former O.C.G.A. § 24-9-67.1)

Complaint alleged that a nurse committed malpractice by not accurately triaging a patient. As the patient's expert nurse had ongoing practical experience in patient triage, and years of practical and teaching experience in supervising patient care, the expert's affidavit filed under O.C.G.A. § 9-11-9.1 was legally sufficient even though the expert had not performed emergency room triage. Houston v. Phoebe Putney Mem. Hosp., Inc., 295 Ga. App. 674, 673 S.E.2d 54 (2009) (decided under former O.C.G.A. § 24-9-67.1)

In a medical malpractice action brought by a patient against a hospital and an employee of the hospital, the patient's expert nurse was held to be indisputably qualified under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) based on the nurse actively and regularly practicing as a licensed nurse on a full-time basis in supervising and directly performing nursing services and being a faculty member at two educational institutions accredited in the teaching of the nursing profession. Lee v. Phoebe Putney Mem. Hosp., Inc., 297 Ga. App. 692, 678 S.E.2d 340 (2009) (decided under former O.C.G.A. § 24-9-67.1)

In a case involving a patient who fell at the doctor's office while a nurse was weighing the patient, a trial court abused the court's discretion in concluding that a nursing expert was not qualified to testify under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703). The proper area of specialty was not weighing patients, in which the nurse expert had little experience, but managing patient safety while moving or directing patients, in which the nurse expert had sufficient experience at a surgical clinic. Anderson v. Mt. Mgmt. Servs., 306 Ga. App. 412, 702 S.E.2d 462 (2010) (decided under former O.C.G.A. § 24-9-67.1)

Medical malpractice expert testimony sufficient to avoid directed verdict.

- Patient who was allergic to latex alleged a hospital's negligent use of a latex catheter caused her to develop interstitial cystitis (IC). Though the patient's medical expert admitted that the causes of IC were unknown, and that no research linked IC to latex allergies, the expert's testimony that allergic reactions could trigger IC, and did so in the patient's case, was sufficient evidence of medical causation to justify denying the hospital's motion for judgment notwithstanding the verdict. EHCA Dunwoody, LLC v. Daniel, 277 Ga. App. 783, 627 S.E.2d 830 (2006) (decided under former O.C.G.A. § 24-9-67.1)

In a medical malpractice action, the trial court properly denied a neurosurgeon's motion to dismiss the action, on grounds that the affidavit required under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) was from an orthopedist and not a fellow neurosurgeon, as the statutory area of practice in which the opinion was to be given was dictated not by the apparent expertise of the treating physician, but rather by the allegations of the complaint concerning the plaintiff's injury. Abramson v. Williams, 281 Ga. App. 617, 636 S.E.2d 765 (2006), cert. denied, No. S07C0226, 2007 Ga. LEXIS 91 (2007) (decided under former O.C.G.A. § 24-9-67.1)

In a medical malpractice action involving alleged nerve damage to a child during delivery, a trial court properly directed a verdict in favor of the doctor upon determining that the suing parent failed to provide causation evidence as the parent's expert failed to rule in a certain possibility as to the cause of the injury at issue and, instead, assumed a cause of injury, which was unsupported by the evidence. Hawkins v. OB-GYN Assocs., P.A., 290 Ga. App. 892, 660 S.E.2d 835 (2008) (decided under former O.C.G.A. § 24-9-67.1)

Police officer as expert.

- In a negligence case, assuming that admission of a police officer's affidavit opining as to the cause of an accident was error under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), the error was harmless in light of other evidence showing that the proximate cause of the accident was the driver's own negligence, including the driver's statements to treating physicians that the driver was reaching for the driver's cell phone when the driver ran off the road and a statement to the insurance adjustor that the driver was distracted. Kecskes v. City of Mt. Zion, 300 Ga. App. 348, 685 S.E.2d 329 (2009) (decided under former O.C.G.A. § 24-9-67.1)

Forensic toxicologist permitted to testify on effects of methamphetamine.

- In a wrongful death and negligence action, in which the decedent was riding a motorcycle when the decedent collided with an automobile occupied by the defendants, an investigator was qualified to present the investigator's opinion as to why the decedent contributed to the accident because the investigator's conclusion was based partly on the area's hilly terrain, and its associated reduced visibility, as well as witness statements; the investigator had received training and conducted traffic investigations; and the investigator walked and photographed the scene, marked the locations of the motorcycle and the automobile at the time of impact, ascertained the weather and lighting conditions, and noted the scene's hilly terrain. Clack v. Hasnat, 354 Ga. App. 502, 841 S.E.2d 210 (2020).

In a wrongful death and negligence action, in which the decedent was riding a motorcycle when the decedent collided with an automobile occupied by the defendants, a forensic toxicologist with the Georgia Bureau of Investigation did not testify to perception-reaction time or whether the positive methamphetamine test was the result of illegal or prescription drugs for which the forensic toxicologist was allegedly not qualified to testify; however, the forensic toxicologist was qualified as an expert regarding the matters to which the forensic toxicologist did testify, including the effects of methamphetamine on behavior and conduct. Clack v. Hasnat, 354 Ga. App. 502, 841 S.E.2d 210 (2020).

Officer qualified as expert on gangs.

- Police officer was properly qualified as an expert in gang identity and investigation as the officer was a state certified gang investigator; that the officer was trained in gang identity and investigation; that the officer trained new hires about gangs; and that the officer regularly monitored six Clayton County-based gangs, and was knowledgeable about the neighborhoods in which the gangs operated. The officer also testified that the officer knew the colors associated with the defendant's gang and had seen photographs of their gang signs. Burgess v. State, 292 Ga. 821, 742 S.E.2d 464 (2013).

Expert's conclusion could not serve as basis for summary judgment.

- Expert's testimony as to the cause of an auto accident was speculative and could not support summary judgment as the credibility of the expert and the weight to be given to the opinion were matters to be addressed by the jury; moreover, if the expert's opinion was based upon inadequate knowledge, this fact did not mandate the exclusion of the opinion but, rather, presented a jury question as to the weight which should be assigned to the opinion. Layfield v. DOT, 280 Ga. 848, 632 S.E.2d 135 (2006) (decided under former O.C.G.A. § 24-9-67.1)

Opinion testimony properly admitted.

- In a premises liability case involving an elevator that stopped above landing level, the trial court properly allowed the plaintiffs' expert to give opinion testimony that the elevator maintenance provider did not follow industry standards in maintaining the elevator; the expert based the opinion on the expert's personal knowledge of the elevator industry, the expert's review of the elevator maintenance records, and the deposition testimony of the provider's mechanics, Brady v. Elevator Specialists, Inc., 287 Ga. App. 304, 653 S.E.2d 59 (2007) (decided under former O.C.G.A. § 24-9-67.1)

In a patient's suit against a doctor, the doctor was qualified to testify as to the doctor's opinion on the standard of care and causation in the case; although the doctor was not board certified in any field of medicine and had not instructed in the area of emergency medicine, the doctor met the competency standard set forth in former O.C.G.A. § 24-9-67.1(c)(2)(A) (see now O.C.G.A. §§ 24-7-702,24-7-703) because the doctor was licensed to practice medicine for 26 years, the doctor practiced as an emergency room physician for 19 years, and the doctor was regularly engaged in the practice of emergency medicine during five of the five years preceding the doctor's treatment of the patient. Cruickshank v. Elbert County, F. Supp. 2d (M.D. Ga. May 19, 2008) (decided under former O.C.G.A. § 24-9-67.1)

In a breach of contract and bad faith refusal to pay claim under a policy of lender's title insurance, since a retrial was issued on another issue, whether environmental stigma was a title defect covered by the title insurance policy was an issue that could be addressed again as to actual damages but the trial court properly permitted the insured's expert to testify as to diminution of the subject property's value. Old Republic Nat'l Title Ins. Co. v. RM Kids, LLC, 337 Ga. App. 638, 788 S.E.2d 542 (2016), cert. denied, No. S16C1843, 2017 Ga. LEXIS 117 (Ga. 2017).

Trial court did not abuse the court's discretion in a medical malpractice action by denying the hospital defendant's motion to exclude the expert opinions of one of the plaintiffs' experts because the expert's causation opinion that the patient plaintiff would have made a candidate for immediate surgical intervention rather than surgery down the road was reliable and, therefore, admissible. Hosp. Auth. v. Fender, 342 Ga. App. 13, 802 S.E.2d 346 (2017).

Objections to expert opinions not timely filed.

- In a tenant's action against the leasing agent of the tenant's apartment complex alleging that the tenant was injured by soot emitted from the apartment's heating system, the trial court properly refused to exclude expert opinions on behalf of the tenant on the ground that the opinions were inadmissible under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703); although the agent had notice that the tenant intended to rely on the experts' opinions, it did not assert its claim until the last business day before the trial and therefore failed to seek a timely ruling no later than the final pretrial conference contemplated under O.C.G.A. § 9-11-16 and as required by former § 24-9-67.1(d). Ambling Mgmt. Co. v. Purdy, 283 Ga. App. 21, 640 S.E.2d 620 (2006) (decided under former O.C.G.A. § 24-9-67.1)

Expert testimony was properly allowed in a medical negligence action because the suing patient failed to timely challenge the expert evidence via former O.C.G.A. § 24-9-67.1(d) (see now O.C.G.A. §§ 24-7-702,24-7-703), by way of a pretrial hearing; moreover, even assuming that the untimeliness of the patient's request for a hearing did not waive the particular grounds asserted in a motion to strike brought at the close of evidence, the patient nevertheless waived all remaining objections to the expert testimony by failing to object contemporaneously. Airasian v. Shaak, 289 Ga. App. 540, 657 S.E.2d 600 (2008) (decided under former O.C.G.A. § 24-9-67.1)

In a negligence suit involving the death of an individual in an automobile collision, a trial court erred by declaring that application of former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), with regard to a hitch manufacturer seeking to exclude plaintiff's expert witness, would have been unconstitutional as the motion to exclude the expert was filed several months after the final pretrial conference had already taken place and, thus, the time period within which the trial court was required to hold a hearing and rule on the motion had already passed. However, application of the former statute would not have changed the trial court's ultimate, and correct, conclusion that the hitch manufacturer's motion to exclude the expert was without merit based on the time period for ruling on the motion having already passed. Ford Motor Co. v. Gibson, 283 Ga. 398, 659 S.E.2d 346 (2008) (decided under former O.C.G.A. § 24-9-67.1)

Speculative opinion testimony by expert improperly admitted.

- In a premises liability case involving an elevator that stopped above landing level, the trial court should have excluded the opinion of an expert that if the elevator maintenance provider had followed a more aggressive maintenance schedule for the elevator, the condition in the elevator that led to its mis-leveling would almost certainly have been discovered or prevented before a passenger was injured; the expert had showed no basis for the opinion. Brady v. Elevator Specialists, Inc., 287 Ga. App. 304, 653 S.E.2d 59 (2007) (decided under former O.C.G.A. § 24-9-67.1)

Capacity to execute a deed.

- Even if registered nurses and licensed practical nurses who cared for a decedent after the decedent's diagnosis with Alzheimer's disease lacked qualifications to testify as experts about the decedent's capacity to execute a deed, a trial court did not err in permitting the nurses to testify because even a lay witness could give evidence on the question of capacity as long as the witness gave sufficient facts to form the basis of the witness's opinion; the witnesses offered detailed testimony about the decedent's inability to recognize the decedent's sibling or sign the decedent's own name, the decedent's chronic disorientation, the decedent's need for constant redirection and reorientation, and other factual observations the nurses made about the decedent's mental state and the decedent's apparent lack of capacity. Smith v. Smith, 281 Ga. 380, 637 S.E.2d 662 (2006) (decided under former O.C.G.A. § 24-9-67.1)

Striking valuation testimony proper.

- Trial court did not manifestly abuse the court's discretion by striking certain testimony of the condemnee's expert witness regarding valuation on the ground that the testimony was without sufficient foundation since the testimony was based on an assumption of the value as if the subject property had already been subdivided, which it had not; in making its ruling, the trial court properly discerned that, even though a different use of the property was shown to have been reasonably probable, a jury cannot evaluate the property as though the new use were an accomplished fact. Woodland Partners Ltd. P'ship v. DOT, 286 Ga. App. 546, 650 S.E.2d 277 (2007), cert. denied, No. S07C1767, 2007 Ga. LEXIS 698 (Ga. 2007) (decided under former O.C.G.A. § 24-9-67.1)

Probative value.

- To the extent that an affidavit as to the value of a truck was offered as an expert opinion, the affidavit lacked probative value as there was no evidence that the valuation method the affiant used was reliable. Dowdell v. Volvo Commer. Fin., LLC, 286 Ga. App. 659, 649 S.E.2d 750 (2007) (decided under former O.C.G.A. § 24-9-67.1)

Limited qualification as expert.

- In a suit against a permittee by the Environmental Protection Division of the Georgia Department of Natural Resources (EPD), the permittee objected to testimony of an EPD employee on the ground that the employee was not qualified as an engineer under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703). The trial court, however, qualified the witness and permitted the employee to testify as an expert in biologic and anaerobic processes, and did not abuse the court's discretion in doing so. Agri-Cycle LLC v. Couch, 284 Ga. 90, 663 S.E.2d 175 (2008) (decided under former O.C.G.A. § 24-9-67.1)

Trial court did not err in granting the plaintiff's motion in limine as to the defendant's expert in a slip and fall case because the defendant did not identify the doctor as an expert witness until one business day before the consolidated pretrial order was filed, which reserved the plaintiff's right to file motions to challenge any late-disclosed experts. Vineyard Indus. v. Bailey, 343 Ga. App. 517, 806 S.E.2d 898 (2017), cert. denied, No. S18C0480, 2018 Ga. LEXIS 314 (Ga. 2018).

Expert found not qualified to render opinion.

- In a personal injury case when a driver alleged that a loose tie rod caused the driver to lose control of the steering, neither of the driver's experts was qualified to render an opinion as to the cause of the accident; the first expert did not have adequate knowledge or experience with the mechanical aspects of a vehicle to determine if mechanical failure caused the vehicle to lose control and also had no experience in evaluating design defects, and the second expert, an experienced mechanic and a police officer, had no experience in the area of accident reconstruction or in evaluating the circumstances surrounding catastrophic mechanical failure. Smith v. Liberty Chrysler-Plymouth-Dodge, Inc., 285 Ga. App. 606, 647 S.E.2d 315 (2007), cert. denied, No. S07C1526, 2007 Ga. LEXIS 861 (Ga. 2007); cert. denied, 552 U.S. 1317, 128 S. Ct. 1883, 170 L. Ed. 2d 757 (2008) (decided under former O.C.G.A. § 24-9-67.1)

Trial court did not abuse the court's discretion in applying former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), and excluding the testimony of two experts in plaintiffs' personal injury suit because neither witness's testimony was shown to be the product of reliable principles and methods. One expert's testimony on the issue of causation lacked scientific support, and the other expert's testimony on the issue of labeling used standards having no specific relevance to consumer use of products, and the opinion was based solely on data obtained from the Internet and from plaintiffs' attorneys. 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)

When a couple who filed a medical malpractice case did not show that their experts had actual professional knowledge and experience through active practice or by teaching during at least three of the last five years, the trial court properly held under O.C.G.A. §§ 9-11-9.1 and former24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) that the experts were not qualified to give an opinion and dismissed the case. Akers v. Elsey, 294 Ga. App. 359, 670 S.E.2d 142 (2008) (decided under former O.C.G.A. § 24-9-67.1)

Since the plaintiff's witness was not qualified to testify as an expert in a medical malpractice claim based on injuries and the death of an elderly patient, in any event, the witness was not competent to testify based upon the witness's sheer lack of knowledge regarding fall prevention because the witness never authored a falls policy and the witness's knowledge of those policies was strictly limited to the policy in effect at the witness's place of employment, the witness had no knowledge of the Morse Fall Scale, which was the method of fall risk assessment utilized in this case, prior to being retained, and the witness admitted in deposition that the witness did not rely on any textbooks or teachings to base the witness's opinions and that the witness performed no literary searches prior to forming the witness's opinion. Sanders v. United States, F. Supp. 2d (S.D. Ga. Aug. 26, 2011).

Expert qualified.

- Trial court erred in granting the doctor's motion in limine to exclude the testimony of the patient's expert on the grounds that the expert was not qualified to provide an expert opinion on hysteroscopic removal of fibroids and that the expert's testimony was speculative as the expert had significant experience in removing polyps though hysteroscopic procedures and the removal of fibroids via hysteroscopy was not markedly different from removal of polyps via that procedure. Cartledge v. Montano, 325 Ga. App. 322, 750 S.E.2d 772 (2013).

Trial court did not abuse the court's discretion in finding the plaintiffs' expert affiant competent to testify as the expert was a licensed medical doctor and did not have to have the same speciality as the physician to be considered a member of the same profession and the expert had taught in the area of cardiac electrophysiology during the relevant time period. Graham v. Reynolds, 343 Ga. App. 274, 807 S.E.2d 39 (2017), cert. denied, No. S18C0460, 2018 Ga. LEXIS 310 (Ga. 2018).

Expert allowed to testify.

- In a personal injury and loss of consortium action, the trial court did not err by allowing a business to call a witness who had not been identified as an expert as: (1) the proper remedy for the erroneous admission of evidence was to request a continuance or a mistrial, neither of which the injured invitee did; (2) the invitee did not dispute that the invitee received, before trial, the substance of the witness's expected testimony, along with a curriculum vitae, but only argued that the business failed to amend the interrogatory answers; and (3) the invitee failed to object either when the business called the witness to testify, or when the business tendered the witness as an expert. Magill v. Edd Kirby Chevrolet, Inc., 277 Ga. App. 619, 627 S.E.2d 207 (2006) (decided under former O.C.G.A. § 24-9-67.1)

Lender's appraiser's opinion as to foreclosed property's true market value at the time of foreclosure was properly admitted under former O.C.G.A. § 24-9-67.1(b) (see now O.C.G.A. §§ 24-7-702,24-7-703). The lender's expert's appraisal was based upon extensive facts and careful analysis taking into account the potential for future recovery of a down real estate market by the discounted flow method, which the borrower conceded was reliable. Blue Marlin Dev., LLC v. Branch Banking & Trust Co., 302 Ga. App. 120, 690 S.E.2d 252 (2010) (decided under former O.C.G.A. § 24-9-67.1)

There was no abuse of discretion in allowing a witness to testify as an expert on steel and polymer vaults or soil conditions in an action seeking a permanent injunction against a cemetery group because the cemetery group failed to show that the testimony was not the product of reliable principles and methods. Savannah Cemetery Group, Inc. v. DePue-Wilbert Vault Co., 307 Ga. App. 206, 704 S.E.2d 858 (2010) (decided under former O.C.G.A. § 24-9-67.1)

In a visitation dispute, it was not an abuse of discretion to allow the subject children's therapist to testify as an expert in child psychology because any dispute as to the witness's qualifications was properly explored on cross-examination and went to the weight of the witness's testimony, rather than the admissibility of that testimony. Gottschalk v. Gottschalk, 311 Ga. App. 304, 715 S.E.2d 715 (2011) (decided under former O.C.G.A. § 24-9-67.1)

Trial court's evidentiary ruling, denying a property owner's Daubert motion for a hearing to determine the competence of a bank's appraiser pursuant to former O.C.G.A. § 24-9-67.1(b) (see now O.C.G.A. §§ 24-7-702,24-7-703), was not an abuse of discretion because disputes as to the expert's credientials went to the weight and credibility of the testimony, but not to the admissibility. Vill. at Lake Lanier, LLC v. State Bank & Trust Co., 314 Ga. App. 498, 724 S.E.2d 806 (2012) (decided under former O.C.G.A. § 24-9-67.1)

In a case decided under former O.C.G.A. § 24-9-67.1, a doctor was properly qualified as an expert since the doctor acted as a consultant on the causation of pulmonary embolisms and consulted emergency room physicians about some of the patient's tests and researched the issue. Bonds v. Nesbitt, 322 Ga. App. 852, 747 S.E.2d 40 (2013)(decided under former O.C.G.A. § 24-9-67.1)

Trial court did not abuse the court's discretion by admitting the expert testimony proffered by the mortgagee because it was sufficient; competent evidence supported the finding that the foreclosure sale should be confirmed and provided proof of the true market value as of the date of the foreclosure sale. Powder Springs Holdings, LLC v. RL BB ACQ II-GA PSH, LLC, 325 Ga. App. 694, 754 S.E.2d 655 (2014).

Appraisal expert's testimony as to the value of foreclosed property at a confirmation proceeding did not violate former O.C.G.A. § 24-9-67.1(b) because the witness was certified as an appraiser in Georgia and had extensive experience, and the expert's conclusions as to the lot purchase agreement and buildability of certain lots were subject to cross-examination. The trial court, sitting without a jury, was not required to undertake a Daubert analysis of the expert's testimony. Harper v. Ameris Bank, 326 Ga. App. 67, 755 S.E.2d 872 (2014)(decided under former O.C.G.A. § 24-9-67.1)

In a suit arising out of a collision at a highway construction site, the trial court did not err in allowing the plaintiffs' expert testimony on human factors theories, which had been subject to publishing and peer review; however, the expert was not qualified to give an opinion regarding the placement of traffic control signs. Ga. DOT v. Owens, 330 Ga. App. 123, 766 S.E.2d 569 (2014).

Real estate development consultant allowed to testify.

- Expert testimony of a real estate development consultant regarding whether it was possible for the property owner to subdivide the property was properly allowed as the owner asserted that it was impossible for the owner to perform that task in a timely manner because of the Urban Design Commission's involvement, but the consultant's testimony was relevant to show that the property was not under the jurisdiction of the Commission; and that, under the city's subdivision ordinance, there were no restrictions that would prevent the property from being subdivided. Allen v. CFYC Construction, LLC, 354 Ga. App. 890, 842 S.E.2d 297 (2020).

Human factors engineer qualified to testify.

- Trial court did not err by admitting the testimony of the plaintiffs' expert in the wrongful death action because the human factors engineer was qualified to offer the opinion that the reconstruction differed from the conditions that the driver of the car in the accident experienced because the test drivers knew and expected the bump in the roadway, as the engineer was an industrial and mechanical engineer and expert in systems engineering with specific expertise in human factors engineering, and the engineer had studied and evaluated factors that affect human beings, including drivers. DOT v. Delor, 351 Ga. App. 414, 830 S.E.2d 519 (2019), cert. denied, No. S20C0086, 2020 Ga. LEXIS 260 (Ga. 2020).

Trial court did not err by admitting the testimony of the plaintiffs' expert in the wrongful death action because the challenge went to the weight and credibility of the expert's opinion and not the opinion's admissibility, as the expert conceded that the correction changed the expert's opinion regarding whether the car in which the decedents were traveling would have "bottomed out" if the car had been traveling at a lower speed, but it did not change the expert's opinion about whether the car bottomed out at its speed at the time of the accident. DOT v. Delor, 351 Ga. App. 414, 830 S.E.2d 519 (2019), cert. denied, No. S20C0086, 2020 Ga. LEXIS 260 (Ga. 2020).

Surgeon allowed to testify.

- Under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), a vascular surgeon was qualified to give an opinion in a medical malpractice case against an orthopedic surgeon because the vascular surgeon did not allege that the doctor was negligent in the performance of a patient's knee replacement surgery, only in the failure to assess the vascular issues involved, particularly in light of the patient's medical history. Cotten v. Phillips, 280 Ga. App. 280, 633 S.E.2d 655 (2006), cert. denied, No. S06C1966, 2007 Ga. LEXIS 112 (Ga. 2007) (decided under former O.C.G.A. § 24-9-67.1)

Caseworker allowed to testify.

- In a termination of parental rights proceeding, pretermitting whether a case worker was qualified to give an expert opinion about the adverse effects of long-term foster care on the mother's twin children, because the mother failed to show prejudice in light of the other evidence supporting the termination of parental rights, the juvenile court did not err in allowing the case worker's testimony. In the Interest of T.J., 281 Ga. App. 673, 637 S.E.2d 75 (2006) (decided under former O.C.G.A. § 24-9-67.1)

In a medical malpractice case, because the trial court was authorized to conclude that the patient's expert witnesses applied reliable principles and methods to the facts of the case, and that the experts were offering opinions in the area of practice or specialty of pediatric medicine, it did not abuse the court's discretion in qualifying those experts under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703). Canas v. Al-Jabi, 282 Ga. App. 764, 639 S.E.2d 494 (2006), cert. denied, 2007 Ga. LEXIS 197 (Ga. 2007); reversed on other grounds, Kaminer v. Canas, 282 Ga. 830, 653 S.E.2d 691 (2007) (decided under former O.C.G.A. § 24-9-67.1)

Expert with different speciality than defendant doctor.

- Trial court properly denied a doctor's motion to exclude testimony from the patient's expert witness, despite the fact that the expert had a different specialty than the doctor, as such was allowed under the plain language of former O.C.G.A. § 24-9-67.1(c) (see now O.C.G.A. §§ 24-7-702,24-7-703), and the expert's testimony addressed the doctor's alleged misdiagnosis of the patient's condition, which was the ultimate issue in the case. Mays v. Ellis, 283 Ga. App. 195, 641 S.E.2d 201 (2007) (decided under former O.C.G.A. § 24-9-67.1)

Medical expert proper.

- Trial court did not abuse the court's discretion in denying a hospital board's motion to exclude the testimony of the plaintiff's medical expert in a medical malpractice suit because under the plaintiff's complaint the ultimate issues to be decided were whether the hospital staff and the board's urologists committed malpractice by failing to timely evaluate the plaintiff's injury, not whether the board's urologists negligently performed the exploratory surgery or that the urologists negligently removed the plaintiff's testicle contrary to urological standards of care; the area of practice or specialty in which the opinion was to have been given in the case was an area of practice in which the plaintiff's medical expert possessed the requisite knowledge and experience under former O.C.G.A. § 24-9-67.1(c)(2) (see now O.C.G.A. §§ 24-7-702,24-7-703). MCG Health, Inc. v. Barton, 285 Ga. App. 577, 647 S.E.2d 81 (2007), cert. denied, 2007 Ga. LEXIS 821 (Ga. 2007) (decided under former O.C.G.A. § 24-9-67.1)

Trial court did not abuse the court's discretion in denying a motion in limine filed by a doctor and the board of regents of a medical college to exclude expert testimony because the trial court correctly determined that the expert's opinion was based on sufficient facts and data in order to be admissible at trial; the expert deposed that the expert's opinion of the cause of the patient's epidural hematoma was derived from applying the expert's medical knowledge and the expert's experience with previous cases to the patient's medical records and deposition testimony regarding the incident given by the doctor and the patient. Bd. of Regents of the Univ. Sys. v. Casey, 300 Ga. App. 850, 686 S.E.2d 807 (2009) (decided under former O.C.G.A. § 24-9-67.1)

In a medical malpractice action, the trial court's order granting the defending doctor's motion to exclude the patient's expert witness testimony as the testimony related to the causation and permanence of the patient's erectile dysfunction based on a certain test was vacated because the order could be interpreted as requiring the exclusion of all the expert's opinion testimony as to the cause and permanence of the patient's erectile dysfunction. Smith v. Rodillo, 330 Ga. App. 365, 765 S.E.2d 432 (2014).

In a wrongful death case, the trial court did not manifestly abuse the court's discretion in denying the defendants' motion to exclude an expert's opinion because the expert's opinion that the decedent would not have died with the conditions which took the victim's life had the victim not become paralyzied due to the alleged medical malpractice was based on the expert's review of the decedent's medical records. Emory Univ. v. Willcox, 355 Ga. App. 542, 844 S.E.2d 889 (2020).

Medical expert's testimony improperly excluded.

- In a dental malpractice case, an expert witness's testimony about available treatment options for the patient's tumor in the patient's mandible was improperly excluded because the expert was not unqualified to render an opinion as the expert did not have to have performed a particular medical procedure within five years prior to the case to testify. Ouanzin v. Coast Dental Servs., 354 Ga. App. 168, 840 S.E.2d 686 (2020).

Elevator inspector as expert.

- In a premises liability case involving an elevator that stopped above landing level, a person who had worked for 31 years for an elevator company, with responsibilities including maintenance, repair, and upgrading of existing elevators for customers, and who was certified as a qualified elevator inspector, was properly accepted as an expert. Brady v. Elevator Specialists, Inc., 287 Ga. App. 304, 653 S.E.2d 59 (2007) (decided under former O.C.G.A. § 24-9-67.1)

Qualification as board certified doctor.

- During a malpractice case alleging that a patient's doctor failed to timely examine and treat the patient after the patient broke a hip at a long-term care facility, the trial court did not abuse the court's discretion in finding that the patient's expert witness (who, like the doctor, was board certified in internal medicine) was qualified under former O.C.G.A. § 24-9-67.1(c)(2) (see now O.C.G.A. §§ 24-7-702,24-7-703). The witness saw about six patients per week, including patients who resided in long-term-care facilities; the fact that the witness had not ordered an x-ray or CT-scan or admitted anyone to the hospital in the past five years did not disqualify the witness as an expert. Carter v. Smith, 294 Ga. App. 590, 669 S.E.2d 425 (2008), cert. denied, No. S09C0463, 2009 Ga. LEXIS 194 (Ga. 2009) (decided under former O.C.G.A. § 24-9-67.1)

Qualification of engineering expert.

- Given an expert witness's qualifications, including the expert's advanced degrees in civil engineering and public administration, professional engineer's license, certification as a professional traffic operations engineer, fifteen years experience working at the DOT, and eight years experience at the local government level, and the expert's testimony based on personal knowledge of the DOT's manuals and inspection policies, a trial court did not err in allowing the witness to give an opinion of whether the DOT had complied with its storm inspection policy. Ga. DOT v. Miller, 300 Ga. App. 857, 686 S.E.2d 455 (2009) (decided under former O.C.G.A. § 24-9-67.1)

In a property owner's action for trespass and nuisance, the trial court did not abuse the court's discretion by allowing the owner's expert witness to testify because the expert (1) relied on sufficient facts and data; (2) was a civil engineer with a doctorate in engineering science and mechanics; and (3) had consulted and testified as an expert in numerous water intrusion/infiltration and related cases; although the expert deposed that the expert's opinion was a theory that was impossible to prove since the expert could not repeat the owner's initial water leak, the expert had factual information showing that the owner had not had an excessive rainwater problem before a sprinkler vault leak and that chlorinated water flowed to the owner's property in large volumes and could have done so for months, and the expert had factual information that the owner experienced excessive flooding during rains thereafter. Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009), cert. denied, No. S10C0669, 2010 Ga. LEXIS 468 (Ga. 2010) (decided under former O.C.G.A. § 24-9-67.1)

Business valuation expert should have testified.

- In a negligence and breach of trust action, the special master erred by excluding the expert testimony regarding the value of the plaintiff because the expert undertook the exact type of analysis as all other valuation specialists utilize in valuing a business enterprise when public information is not available, and the opinion was relevant for the jury to determine, in conjunction with other testimony and evidence, the amount of damages that the defendant's alleged actions may have caused, which necessarily required consideration of opinion evidence as to the value of the business. Levine v. SunTrust Robinson Humphrey, 321 Ga. App. 268, 740 S.E.2d 672 (2013) (decided under former O.C.G.A. § 24-9-67.1)

Expert testimony as to timber value.

- County board of equalization's tax assessment of a 250-acre tract of timberland was affirmed as the trial court did not err in failing to exclude estimates of timber value proffered by the board's expert as the appellants failed to show that the testimony was wholly speculative or conjectural, or that it was not the product of reliable principles and methods. White Horse Partners LLLP v. Monroe County Bd. of Tax Assessors, 348 Ga. App. 603, 824 S.E.2d 57 (2019).

Federal interpretation on party bearing burden of establishing reliability of expert's opinion.

- The Georgia Court of Appeals held that the trial court properly utilized federal authority, including Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as permitted by former O.C.G.A. § 24-9-67.1(f), when determining whether an expert's testimony met the requirements of former § 24-9-67.1(b); such authority imbues trial courts with 'substantial discretion in deciding how to test an expert's reliability.' Citing Mason v. Home Depot U.S.A., Inc., 283 Ga. 271 (Ga. 2008), and McClain v. Metabolife Intl., 401 F.3d 1233 (11th Cir. 2005), the court noted that former O.C.G.A. § 24-9-67.1(b) is based upon Rule 702 of the Federal Rules of Evidence, which places the burden of establishing the reliability of the expert's opinion on the proponent. 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)

Use of deposition at trial subject to expert rules.

- In a medical malpractice case, the patient's survivor could not use the deposition of a surgery center's representative taken under O.C.G.A. § 9-11-30(b)(6) to establish the doctor's standard of care without regard to O.C.G.A. § 24-7-702, governing the admissibility of expert testimony; O.C.G.A. § 9-11-32(a) allowed the use of such depositions for any purpose but required application of the rules of evidence. Yugueros v. Robles, 300 Ga. 58, 793 S.E.2d 42 (2016).

Trial court should rule on admissibility before ruling on summary judgment.

- Because the opinions of a homeowner's experts, if admissible, would present a jury question on the issue of an exterminator's breach of contract and the extent of the homeowner's damages, a trial court erred in failing to decide the admissibility of these opinions under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703) before granting summary judgment to the exterminator. An v. Active Pest Control South, Inc., 313 Ga. App. 110, 720 S.E.2d 222 (2011) (decided under former O.C.G.A. § 24-9-67.1)

Summary judgment entered in favor of a sanitation company was vacated as to a citizen's claim that the company negligently damaged a platform, created a tripping hazard, and caused the citizen's injuries because the trial court had to rule on the admissibility of the citizen's expert witness before the court of appeals could consider whether the company bent the landing and caused a tripping hazard; the company moved to exclude the expert's testimony under former O.C.G.A. § 24-9-67.1, but the trial court never ruled on admissibility. Burroughs v. Mitchell County, 313 Ga. App. 8, 720 S.E.2d 335 (2011) (decided under former O.C.G.A. § 24-9-67.1)

Expert's opinions were improperly found not to be reliable under former O.C.G.A. § 24-9-67.1(b)(2) and (b)(3) (see now O.C.G.A. §§ 24-7-702,24-7-703) in a negligence action on the basis that the opinions were products of the engineer's exercise of engineering judgment and thus inadmissible because the expert was not required to point to a specific provision in the Manual of Uniform Traffic Control Devices that required the exact safety measures the expert proposed, the expert could rely on the expert's 48 years as a licensed professional engineer, and the expert was also not required to validate the expert's opinion by showing a series of similar accidents that could constitute test results. Hamilton-King v. HNTB Ga., Inc., 296 Ga. App. 864, 676 S.E.2d 287 (2009) (decided under former O.C.G.A. § 24-9-67.1)

Jury instructions.

- In a medical malpractice case when evidence of an expert's personal practices is admitted, the trial court must give jury instructions that clearly define the legal meaning of standard of care; enunciate the principle that a mere difference in views between physicians does not by itself prove malpractice; and clarify concepts such as burden of proof and credibility of witnesses. In addition, the party whose expert has been cross-examined has the ability to elicit explanations for why the expert's practices differ from what that expert attested to as the standard of care. Condra v. Atlanta Orthopaedic Group, P.C., 285 Ga. 667, 681 S.E.2d 152 (2009) (decided under former O.C.G.A. § 24-9-67.1)

Cited in Young v. State, 328 Ga. App. 857, 763 S.E.2d 137 (2014), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020); SJN Props., LLC v. Fulton County Bd. of Assessors, 296 Ga. 793, 770 S.E.2d 832 (2015); Doctors Hosp. of Augusta, LLC v. Alicea, 332 Ga. App. 529, 774 S.E.2d 114 (2015), aff'd, 299 Ga. 315, 788 S.E.2d 392 (2016); Mitchell v. State, 301 Ga. 563, 802 S.E.2d 217 (2017), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019); Smith v. CSX Transp., Inc., 343 Ga. App. 508, 806 S.E.2d 890 (2017); Bullard v. State, 307 Ga. 482, 837 S.E.2d 348 (2019); Gervin v. The Retail Property Trust, 354 Ga. App. 11, 840 S.E.2d 101 (2020).

RESEARCH REFERENCES

Defense Use of Economist, 31 Am. Jur. Trials 287.

ALR.

- Medical negligence in extraction of tooth, established through expert testimony, 18 A.L.R.6th 325.

Admissibility in evidence, in civil action, of tachograph or similar paper or tape recording of speed of motor vehicle, railroad locomotive, or the like, 18 A.L.R.6th 613.

Admissibility of expert testimony by nurses, 24 A.L.R.6th 549.

Qualification as expert to testify as to findings or results of scientific test concerning DNA matching, 38 A.L.R.6th 439.

Admissibility of computer forensic testimony, 40 A.L.R.6th 355.

Admissibility of evidence taken from vehicular Event Data Recorders (EDR), Sensing Diagnostic Modules (SDM), or "black boxes", 40 A.L.R.6th 595.

Admissibility of biomedical engineer testimony, 43 A.L.R.6th 327.

Necessity and admissibility of expert testimony to establish malpractice or breach of professional standard of care by architect, 47 A.L.R.6th 303.

Qualification as expert to testify in legal malpractice action, 82 A.L.R.6th 281.

Admissibility and propriety of use of Abel Assessment for Sexual Interest test, 84 A.L.R.6th 263.

Use and effect of Comparative Bullet Lead Analysis (CBLA) in criminal cases, 92 A.L.R.6th 549.

Requirement for, and admissibility of, expert testimony to determine whether use of particular amount of force in course of making arrest was unreasonable, 95 A.L.R.6th 641.

Propriety of expert historian testimony, 4 A.L.R.7th 4.

Admissibility of expert testimony regarding false confessions, 11 A.L.R.7th 6.

Admissibility and effect of evidence of "psychosocial short stature," "psychosocial dwarfism," or the like in cases involving parent-child relationship, 13 A.L.R.7th 1.

Admissibility of expert testimony on grooming behavior involving sexual conduct with child, 13 A.L.R.7th 9.

Admissibility, sufficiency, and other issues concerning expert evidence to prove or disprove shaken baby syndrome, 16 A.L.R.7th 5.

Admissibility of expert testimony concerning extremist groups and associated persons and organizations, 39 A.L.R.7th Art. 6.

Admissibility and weight, in criminal case, of expert or scientific evidence respecting microscopic analysis of human hair, 43 A.L.R.7th Art. 9.

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