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Thanks to an apparent change of heart by two justices, a tort reform debate that had bounced from the General Assembly to the Georgia Supreme Court is now back at the General Assembly. Last April, the court voted 5-2 to consider adopting a strict expert witness rule that tort reform advocates had failed to get through the General Assembly. But after briefings by the parties and five friends of the court, plus an oral argument in July, the court this week announced it would not decide the case after all. The vote this week was 4-3, revealing that Presiding Justice Leah Ward Sears and Justice Robert Benham had switched sides. They voted with the majority in April to grant certiorari in the case, but they voted with the majority this week to vacate the April decision as “improvidently granted.” Justices Carol W. Hunstein and Hugh P. Thompson, who dissented from the certiorari grant in April, joined Sears and Benham to dismiss the case. Chief Justice Norman S. Fletcher and Justices George H. Carley and P. Harris Hines, who had voted with Sears and Benham in April to grant certiorari, formed the dissenting minority this week. Neither side offered any public comment on the switch. Orkin Exterminating Co. Inc. v. Carder, No. S03C650 (Sup. Ct. Ga., Sept. 8, 2003). Charles M. Cork III, who helped author an amicus brief for the Georgia Trial Lawyers Association urging the court not to adopt the strict expert witness rule, said it’s hard to figure out why Sears and Benham switched course “because they can do it for different motivations.” According to a LexisNexis search, the last two times the Georgia high court vacated certiorari grants were in 2001 ( Williams v. State, No. S01G1159) and 1996 ( Rollins v. Rollins, 266 Ga. 597). The GTLA had urged the Georgia court to reject the expert witness rule favored by the business and defense communities because, “It’s really a legislative matter,” said Cork. Eric Johnson, the leading Republican in the state Senate, sounded perplexed by the court’s reversal, but he vowed to fight on in favor of a new expert witness rule. “We’re going to have to do it ourselves,” he said. Both in the General Assembly and in the now-dead Georgia high court case, tort reform advocates had hoped Georgia would become the next state to adopt expert witness standards set out by the U.S. high court in the 1993 case of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579. In that case, the U.S. high court gave federal judges stricter rules by which 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, plaintiffs’ lawyers consider Daubert and subsequent decisions based on it to have made it easier for judges to throw out their experts. 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. THE PESTICIDE THAT STARTED IT ALL Nearly lost in this aborted tort reform battle were the facts of the case at hand, in which Edward S. Carder Jr. claimed 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, Ga., electric company. The expert at issue was Dr. Howard Frumkin, the director of environmental and occupational medicine at the Rollins School of Public Health at Emory University. He tried to identify the cause of Carder’s problem through 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 Atlanta’s Decker, Hallman, Barber & Briggs, said in an interview that Frumkin’s testing was “completely unscientific.” Carder’s lawyer, W. Seaborn Jones of Atlanta’s Owen, Gleaton, Egan, Jones & Sweeney, backed the Frumkin testing method. He noted that Judge Susan B. Forsling of Fulton County State Court held a “ Daubert-style” pretrial hearing examining and approving 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, for a $500,000 total. Orkin 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). When the state Supreme Court granted Orkin’s petition for certiorari, the justices said they were concerned particularly with what standards should govern the admissibility of expert scientific evidence in Georgia — specifically with regard to the 1982 case that established the “verifiable certainty” standard, Harper v. State, 249 Ga. 519; Daubert; and a successor case to Daubert, Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Orkin lawyer Decker said that during oral argument in July, the justices gave no hint that they were considering dropping the case: “They seemed very engaged.” But with the court’s decision not to rule on the case, the appeals court ruling affirming the $500,000 award for Carder stands. Decker and Carder’s lawyer, Jones, said they already have made arrangements for Orkin to pay the judgment, which included 12 percent interest for about three years since the trial. That amounts to about $170,000, said Jones, who said he was not completely surprised the court passed on the case. “I couldn’t figure out why they took it,” he said. MIXED REVIEWS Reaction to the court’s reversal was predictably mixed. Barry M. Parsons of Washington’s Crowell & Moring, who filed an amicus brief for the Product Liability Advisory Council urging adoption of Daubert-like standards, called the court’s move “baffling,” especially since he thought both sides presented their arguments well. Leslie J. Bryan of Atlanta’s Doffermyre, Shields, Canfield, Knowles & Devine — who with Robert E. Shields co-authored amicus briefs for both the GTLA and the American Public Health Association — said she thought the state Supreme Court “reached the right result.” William T. “Bill” Clark, the chief lobbyist for the GTLA, praised the court’s move and added, “We are confident the Legislature will continue to see the wisdom of rejecting Daubert.“ Alston & Bird’s Judson Graves, who authored an amicus brief for the Medical Association of Georgia and other defense-side interests, predicted his side would prevail in the end, if not in the courts, then in the Legislature: “Eventually Georgia will come around to this.”

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