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Alyson M. Palmer

Fulton County Daily Report

11-08-2007

While the Georgia Supreme Court considers a constitutional challenge to a new rule on expert witnesses, Georgia lawyers are struggling to make the rule work for them and their clients.

The high court is weighing a challenge by plaintiffs in a products liability case to part of the 2005 piece of legislation known as SB 3. Among other arguments, the plaintiffs claim the rule violates state constitutional rights of equal protection and trial by jury.

The case has drawn amicus briefs supporting the plaintiffs from the Georgia Trial Lawyers Association, professors and research scholars. A lawyer from the Washington-based Center for Constitutional Litigation represented the plaintiffs before the court Monday.

There is no mystery to this attention. The new rule makes it easier for a judge to disqualify an expert witness as a purveyor of "junk science."

"It can be the death knell of a case for a lawyer very easily," said Atlanta lawyer Mary Donne Peters, "and for a very distinguished doctor, accountant, engineer, it can be a professional stigma that can follow them for the rest of their career."

The new state law governing expert witnesses in civil cases, O.C.G.A. § 24-9-67.1, is based in part on a federal rule amended in response to the 1993 U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579. That case said that federal trial judges have a "gatekeeping role" to ensure that an expert's testimony rests on a "reliable foundation."

The problem for Georgia lawyers is that many don't practice in federal court.

"They don't even know what Daubert is," said Antoinette Davis of Boone & Stone. "It's like a brave new world for all of these folks -- and the trial judges, too."

Just about any lawyer could find himself or herself on the business end of the Daubert rifle. A lawyer doesn't have to handle products liability or medical malpractice matters to experience this problem, said Peters. She said the use of Daubert motions is even creeping into the family law arena, where psychologists and business valuation experts often testify.

The lawyers who have studied the issue carefully have some tips for their fellow practitioners, but they don't all agree on the best way to navigate the new expert witness landscape.

Peters, who co-authored a book on the admissibility of expert testimony in Georgia, said she represents both plaintiffs and defendants. She's got one piece of advice for lawyers considering making a Daubert motion in a rural courtroom: "Don't wound the king."

In other words, be careful about attacking a witness with whom the judge is familiar. "In a scenario like that, where the judge knows everyone and the expert has testified many times in his or her courtroom, it just doesn't make sense," said Peters, partner with Gorby, Peters & Associates. "You save your ammunition for cross-examination."

Lynn M. Roberson, a partner at Swift, Currie, McGhee & Hiers who defends premises liability and other personal injury cases, said she's cautious about using Daubert challenges and hasn't made many herself.

"Personally, I feel like I want to save it for when I really want to knock somebody out of the box and I'm confident I can do that," said Roberson. If the plaintiff's expert is shaky, she said, it's better to make the expert look bad in front of the jury than to alert the plaintiff's counsel to the problem.

There are hazards to that approach, however, said Hall, Booth, Smith & Slover partner Robert L. Shannon Jr., who represents the defendants in the case heard by the Supreme Court on Monday. Shannon said tearing apart a likable witness may turn off the jury.

"Sometimes it's not the smartest guy in the box that will carry the day for the jury," said Shannon. "It's his ability to communicate and touch the jury."

Shannon added that if a defendant can take down a key plaintiff's expert on a pre-trial motion, the plaintiff is left vulnerable to a summary judgment motion -- a combination some call the "Daubert cocktail."

Anecdotal reports suggest that defense lawyers are using Georgia's new expert witness rules more frequently than plaintiffs lawyers, leaving the latter to focus on preparing to defend their witnesses.

Leslie J. Bryan, an Atlanta lawyer who chairs the Daubert litigation group of the American Association for Justice (formerly the Association of Trial Lawyers of America), said the federal rules require the production of an expert report laying out the expert's opinions for the other side that is much more extensive than any disclosure required under the Georgia rules.

But the Doffermyre Shields Canfield Knowles & Devine partner suggested that to cover their bases, lawyers anticipating a challenge to their expert in state court should operate as though they were in federal court, providing a more detailed report intended to meet the requirements of the federal Daubert rule on which the Georgia rule is based.

Davis, who also represents plaintiffs, said lawyers can prepare to defend a Daubert challenge by making sure their experts come to their deposition ready to talk about their methodology and sources, even bringing along treatises or other materials. The Daubert rules are new for many experts, too, she said.

"The lawyers should have them prepared," said Davis. "It's not the expert's job to know what the law is necessarily."

Under the old rule, explained Peters, smart attorneys defending their expert's deposition would put no questions to the expert at the deposition, assuming they could clean up any problems with an affidavit. "Under Daubert, that is not a good idea," said Peters.

But a savvy practitioner deposing an expert won't simply ask the expert to lay out his opinions, she explained. Instead, the lawyer will ask focused questions to establish what the expert didn't consider, such as other possible causes of an injury, thereby laying the predicate for a Daubert motion. If a lawyer defending the deposition doesn't ask his or her own questions, Peters said, then she's faced with either bringing her expert into court, which is expensive, creating an affidavit, which may create an inconsistency, or losing some portion of the expert's testimony.

Peters also suggested plaintiffs lawyers ask judges for scheduling orders requiring Daubert motions be submitted ahead of the deadline for filing summary judgment motions. That may give plaintiffs a chance to find a substitute for an expert knocked out by a Daubert motion -- ahead of a ruling on summary judgment.

David E. Tuszynski, a Garland Samuel & Loeb lawyer challenging the expert witness rule at the state high court, agreed that defending against the new rule is something to deal with at the expert's deposition. He said even though the Daubert decision itself said the factors it suggested judges should consider in evaluating experts -- such as whether their theory or technique had been peer reviewed -- was not a checklist for all cases, lawyers should consider it as such when preparing their experts.

But he expressed doubts that the punch of the "Daubert cocktail" could be avoided by scheduling orders. Tuszynski noted how often lawyers file their Daubert and summary judgment motions simultaneously. "You see that happen time after time after time again in the federal system."