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Qualifying Experts

by on May 24, 2011 » Add the first comment.

In preparing for and winning at trial, the importance of finding qualified experts cannot be overemphasized.  Not only must one find a qualified expert, such as a medical doctor, an engineer, or other learned professional, but the expert must prove to the trial court that he or she has particular and measurable expertise in the subject at issue.  This is the result of what is known as the Daubert test, a rule of evidence regarding the admissibility of expert witness testimony at trial.

The Daubert test arose out of a United States Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).  Under Daubert, in order to testify at a trial, experts must first establish that their theory or testimony meets a set of qualifying standards.  This requires experts to satisfactorily demonstrate to the court, as follows:  (1) that the expert’s theory is testable; (2) that the expert’s theory has been peer reviewed; (3) that the expert’s theory is reliable; and (4) that the expert’s theory is generally accepted by the scientific community.

The Daubert test is used by Georgia courts and a recent Georgia Court of Appeals case, Anderson v. Mountain Management Services, Inc., 306 Ga. App. 412, 702 S.E.2d 462 (2010), illustrates some of the principles of Daubert.  In Anderson, a 77-year-old nursing patient fell off a scale due to the alleged negligence of a triage nurse.  The injuries led to the elderly patient’s death.  Plaintiff submitted expert affidavits regarding the nurse’s negligence as required under O.C.G.A. Sec. 9-11-9.1 and O.C.G.A. Sec. 24-9-67.1.

The defendant successfully moved to disqualify the medical doctor’s expert affidavit on the grounds that the expert did not testify that he had supervised or taught or instructed nurses and that he did not regularly manage patient safety while moving or directing patients.  If this ruling was upheld, plaintiff would not have been allowed to have the medical doctor testify at trial.

This could have meant the end of the case for the plaintiff.  Fortunately, the other expert affidavit, from a nurse who testified about her training and experience as a triage nurse, passed muster under Daubert and was admitted by the court.  Thus, the case survived the motion for summary judgment (barely) and the plaintiff was permitted to go to trial.

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