The Supreme Court of Georgia on Monday dispensed with key arguments used by plaintiffs’ lawyers to challenge a 2005 law that makes it harder for their clients to win tort suits.

By a 5-2 vote, the justices largely rejected a challenge to the part of the law known as Senate Bill 3 that tightens standards for admission of expert testimony in civil cases. That rule, found at O.C.G.A. �24-9-67.1, is sometimes known as the Daubert rule for the 1993 U.S. Supreme Court case to which federal rule makers responded in crafting a similar, but not identical, rule of evidence.Before Monday, SB 3 had not fared well at the state’s highest court. The court has struck down an aspect of the law that allowed medical malpractice defendants to have cases heard in their home counties and a section that required medical malpractice plaintiffs to waive privacy rights to their medical records. But those decisions were rendered on narrower grounds that were not applicable to the most controversial parts of the legislation, such as those provisions that capped pain and suffering damages in medical malpractice cases and protected emergency room doctors from liability unless they exhibited “gross negligence.” In a case pending before Fulton County Superior Court Judge Marvin S. Arrington Sr., plaintiffs’ lawyers are challenging those provisions under equal protection, due process, jury trial right and separation of powers grounds. At least some of those same arguments were rejected by the state Supreme Court in Monday’s case, but lawyers on both sides were wary of reading too much into the majority opinion by Justice Robert Benham.The winning lawyer, Frank M. Lowrey IV of Bondurant, Mixson & Elmore, called the opinion “thoughtful and careful and correct.” He added that he disagreed with one aspect that cut some of the statute’s language, but he thought the change would be workable.Lowrey noted that other provisions of SB 3 not yet reviewed by the state high court — such as negligence standards — are different than the expert rule, making it hard to predict how Monday’s decision would affect the consideration of challenges to those provisions. “Except to the extent that this opinion generally confirms the power of our Legislature to make and change tort law, I don’t believe this opinion resolves challenges to other provisions of Senate Bill 3,” said Lowrey. Nonetheless, he said, “If I were defending the constitutionality of other provisions of Senate Bill 3, I would be pleased to see this opinion.”Ned I. Miltenberg of the Washington, D.C.-based Center for Constitutional Litigation, who argued the case for the plaintiffs, said he was very disappointed but still might mount a further challenge to the new Daubert rule should the right case come along.”This issue, considering the constitutionality of Daubert, is not over,” he said, “because some of the issues were not raised and preserved below, and some issues that were before the court were not resolved. The facts did not require the court to do so.”He rejected the notion that the court sent a signal that the statute was constitutional overall. “None of the issues that the court resolved here in any way, shape or form affect our constitutional challenge to other provisions,” said Miltenberg, who also appeared in support of the plaintiffs in a hearing in the case before Arrington last month. In Monday’s case, plaintiffs Arvin Mason and his wife, Claudia, brought suit against Home Depot and floor coating manufacturer The Flecto Co. Inc. in 1997. The suit alleged that Arvin Mason was injured when he inhaled vapors of a floor finish he bought at a Dougasville, Ga., Home Depot. At the first trial of the case, Cobb County State Court Judge Melodie H. Clayton elected to not hold the Masons to the new expert witness rule, as it was signed into law only five days before the February 2005 trial. But the trial ended with a hung jury and mistrial. Preparing for a retrial, in October 2006, Clayton applied the new rule to exclude testimony of two of the plaintiffs’ expert witnesses — a medical doctor who was to testify on the causation of Arvin Mason’s injuries and another witness who was to testify on product labeling. Clayton then certified the matter for immediate appellate review. The Supreme Court received a flood of amicus briefs — with scholars, an informal group of Georgia doctors and the Georgia Trial Lawyers Association supporting the plaintiffs and the Medical Association of Georgia, Georgia Hospital Association, Georgia Defense Lawyers Association and companies such as Coca-Cola, Delta Air Lines and Georgia-Pacific speaking up for the defendants.Benham’s majority opinion largely upheld the Daubert provision against the challenges. Presiding Justice Carol W. Hunstein wrote a dissenting opinion joined in part by Justice George H. Carley. The Masons’ equal protection argument didn’t work, wrote Benham, because the basis of that argument was that Georgia had a more lenient expert witness rule for criminal cases, and the Masons couldn’t show they were similarly situated to criminal defendants. Noting that the court already had decided that all civil litigants aren’t similarly situated to one another for purposes of evidentiary issues, Benham reasoned that parties to civil cases weren’t similarly situated to those involved in criminal cases, either.Benham’s opinion agreed that the Daubert statute was unconstitutionally vague. “Specifically,” he wrote, “subsection (b)(1) limits experts to relying on potentially admissible facts and data, whereas subjection (a) plainly states that facts and data relied upon need not be admissible. The two provisions cannot be harmonized. …” But he added that Clayton correctly declined to strike the statute in its entirety despite this problem — her action of severing the offending part of subsection (b)(1) was sufficient.The majority also rejected arguments over parts of the statute that said it was the Legislature’s intent that Georgia courts shouldn’t be open to expert evidence that wouldn’t be admissible in other states — and that Georgia courts may draw from federal case law in interpreting the Daubert statute. The majority said those parts merely amounted to an expression of intent and a “permissive suggestion.”The court also concluded that the application of the statute to the Masons’ case didn’t violate the prohibition against retroactive application of laws and that Clayton didn’t abuse her discretion interpreting the Daubert provision to exclude the testimony of the Masons’ experts.Justice Harold D. Melton, who was Georgia Gov. Sonny Perdue’s executive counsel when the governor signed SB 3 into law but has said he had very little to do with the bill, wrote a special concurrence saying he agreed with the majority generally but thought that subsections (a) and (b)(1) could be harmonized without striking any part of the statute. Under Melton’s reading of the statute, an expert opinion which relies on both admissible and inadmissible evidence or data may be allowed if the opinion testimony is based on enough admissible evidence so the jury can properly assess it.In her dissent, Hunstein said she disagreed that civil litigants and parties to criminal cases couldn’t be deemed similarly situated for purposes of determining the reliability of expert testimony. “The expert opinion evidence heard by a jury deciding a negligence claim against a podiatrist should not be more reliable than expert opinion evidence admitted to support imposition of a death sentence,” she wrote. Carley joined only in the next part of Hunstein’s opinion — which said that the section saying that Georgia courts hearing civil cases should not be open to expert evidence inadmissible in other states and thus may draw on federal Daubert case law was “a blatant attempt by the Legislature to usurp judicial power.”Hunstein weathered a bruising and expensive campaign to keep her seat in 2006, with her challenger supported by business, insurance and medical interests who acknowledged that saving SB 3 was a key motivating factor. In the earlier case over the part of SB 3 that required medical malpractice plaintiffs to waive their privacy in their medical records when filing suit, however, Hunstein was the lone dissenting voice in favor of upholding two subsections of the provision.The case decided Monday was Mason v. Home Depot, No. S07A1486.