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When the Georgia General Assembly adjourned last month, the battle over tort reform was put on hold until next year’s legislative session. But the fight flared up again — this time at the Georgia Supreme Court. The state justices on April 29 announced they had agreed, by a 5-2 vote, to consider adopting a U.S. Supreme Court precedent that has made it harder for plaintiffs’ lawyers to get product liability and toxic tort cases to trial. The controversy centers on the 1993 case of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, in which the U.S. high court gave federal judges more power to decide who may testify as a scientific expert. According to the decision, federal judges should subject expert witnesses to a detailed assessment of their theories, techniques, error rates and acceptance within the scientific community. Though the rule applies equally to plaintiffs and defendants, Daubert and subsequent decisions based on it have been considered wins for the defense bar and losses for plaintiffs’ lawyers. That’s because judges have thrown out plaintiffs’ experts, whose purpose was to prove that defendants caused plaintiffs’ injuries. When the experts are thrown out, the plaintiffs’ case is gutted and subsequently is tossed out on summary judgment. Georgia courts currently require scientific experts to prove their methods present findings with “verifiable certainty,” but that requirement is considered more flexible than the detailed Daubert standard. At the General Assembly this year, the Georgia Chamber of Commerce and other tort reform advocates lobbied for tougher expert witness standards. The effort failed, but the state high court’s consideration of the issue has stirred both the plaintiffs and business communities back into action. William T. “Bill” Clark, the chief lobbyist for the Georgia Trial Lawyers Association, said he expects his group to urge the Georgia justices to reject the Daubert standard. “It would be shocking for our supreme court — and the height of judicial activism — to adopt Daubert when our Legislature rejected it,” Clark said. Earl Rogers, senior vice president for government affairs at the Georgia chamber, was more circumspect. He said his group was anxious to see what the state high court does in the case and was considering whether to file a friend of the court brief urging the adoption of Daubert. ‘COMPLETELY UNSCIENTIFIC’ TESTS The lawyers involved in the Georgia high court case at issue say they had no intention of extending the legislative fight over tort reform. At issue are claims by Edward S. Carder Jr. that pesticides sprayed by Orkin Exterminating Co. Inc. caused him to have sudden outbreaks of skin lesions, severe muscle and joint pain and general malaise. The case dates back to 1989, when Orkin exterminators began spraying around Carder’s desk at a Marietta electric company. According to his court briefs, Carder’s symptoms diminished when he was away from his office and increased when he returned. A series of doctors couldn’t diagnose or treat the problem until Carder went to Emory University, where two dermatologists concluded Carder probably was having an adverse reaction to some sort of chemical or insecticide. The dermatologists referred Carder to Dr. Howard Frumkin, the director of environmental and occupational medicine at the Rollins School of Public Health at Emory. To identify the cause of the problem, Frumkin conducted six experiments in which he exposed Carder to the pesticides and then to placebo substances to see if either caused Carder’s symptoms to return or worsen. According to the Georgia Court of Appeals opinion, Frumkin first added vinegar to each substance to hide the smell of the pesticides, but fearing that would change the chemical composition, he then found a different way to mask the smell. According to the appeals court, Carder was exposed to the pesticides three times; twice he had a “severe” reaction and once no reaction. When exposed to the placebo, Carder once had a mild reaction and twice had no reaction. Frumkin called his method “common sense testing” and compared it to allergy skin testing. One of Orkin’s lawyers, Richard P. Decker of Decker, Hallman, Barber & Briggs, said in an interview that Frumkin’s testing was “completely unscientific.” Decker and his associate, Stacy Edelstein Hyken, challenged the use of Frumkin as an expert witness. Carder’s lawyer, W. Seaborn Jones of Owen, Gleaton, Egan, Jones & Sweeney, backed the Frumkin testing method and said Judge Susan B. Forsling of Fulton County State Court held a “ Daubert-style” pretrial hearing examining Frumkin’s methods. Forsling allowed Frumkin to testify, and a jury awarded Carder $250,000 in compensatory damages and $2.3 million in punitive damages. Forsling reduced the punitive award to $250,000 per a state law cap. Orkin’s appeal again challenged Frumkin’s testimony, noting that his methodology failed several of the Daubert tests. But the appeals court pointed out that Daubert applied to federal rules that had not been adopted in Georgia. The appeals court affirmed the lower court. Orkin Exterminating Co. v. Carder, 258 Ga. App. 796 (2002). SETTING A STANDARD When Decker and Hyken petitioned the state supreme court for certiorari, they argued that Frumkin’s methods did not pass the current Georgia tests for expert witnesses as set in Harper v. State, 249 Ga. 519 (1982). In that case, the justices said a lower court properly had excluded testimony from a psychiatrist who had administered “truth serum” to his patient, a murder suspect who, while under the drug’s influence, denied committing the murder. The court said the psychiatrist’s method had not been proven with “verifiable certainty,” setting the standard for expert witnesses. Decker and Hyken said in an interview that the Harper “certainty” criterion is too vague and that adopting Daubert or something like it would give trial judges better guidelines in evaluating experts. “We want them to adopt some standard,” said Hyken. In Carder’s response brief, Jones and partner Philippa V. Tibbs-Ellis argue that though Harper gave Georgia trial judges “some latitude” in exercising discretion over scientific evidence, the standard is clear. “There was no error in the trial of this case,” Jones said. Last month the state high court — with Justices Carol W. Hunstein and Hugh P. Thompson dissenting — said it wanted to review the case. The court order said the justices particularly were concerned with what standards or factors should govern the admissibility of expert scientific evidence in Georgia — specifically with regard to Harper, Daubert and a successor case to Daubert, Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Orkin Exterminating Co. Inc. v. Carder, No. S03C650 (Sup. Ct. Ga., April 29, 2003). POWER TO END A CASE Albert M. Pearson III, a plaintiffs’ lawyer and former evidence professor at the University of Georgia School of Law, noted that Daubert decisions tossing plaintiffs’ experts rarely are overturned on appeal. “It gives a trial judge a tremendous amount of power to end a case,” added Pearson, a partner in Moraitakis, Kushel & Pearson. Many states have adopted Daubert standards, Pearson said, suggesting that could be a factor in why the state high court took up the Orkin case. But since Georgia’s evidence rules do not reflect the underlying federal rules that gave rise to Daubert, the court “may conclude they just don’t have the text” to adopt Daubert. Laurie Webb Daniel, who chairs the appellate practice group at Holland & Knight, said she was glad the court took the case because the issue was ripe for review. “Some Georgia decisions have indicated receptiveness to the Daubert approach with respect to scientific and technical evidence, while others have flatly rejected it on the ground that Georgia has not adopted the federal rules of evidence,” Daniel said. A lawyer who generally represents defendants, Daniel said she does not agree that adoption of the federal standard necessarily would change Georgia law. “More likely it would clarify it,” she said, arguing that the Harper standard in Georgia is “very open-ended regarding when a court can take judicial notice of trends from other jurisdictions.”

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