IN THE SUPREME COURT, STATE OF GEORGIA
CASE NO. S03G0650
ORKIN EXTERMINATING COMPANY, INC.,
APPELLANT
v.
EDWARD S. CARDER, JR. AND AMANDA LEIGH CARDER,
APPELLEES

 

AMICUS CURIAE BRIEF

OF THE GEORGIA TRIAL LAWYERS’ ASSOCIATION

The Georgia Trial Lawyers’ Association represents more than 2000 trial lawyers in Georgia. The organization is committed to the preservation of the Constitutional right to a jury trial and to protecting the rights of injured parties. GTLA, as amicus curiae, respectfully submits that the admissibility of expert testimony in Georgia is governed by the long-standing statutory rule set out in O.C.G.A. § 24-9-67, as interpreted by Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982), that only the legislature can change that rule of admissibility, and that, even if this Court had the constitutional power to adopt a Daubert type rule for the Georgia courts, there would be no good reason to do so because the Daubert rule has been a disaster in the federal courts.

I. INTRODUCTION

In Harper, this Court was asked to evaluate the standard for determining whether the results of an interview, conducted while the Defendant was under the influence of truth serum, were admissible. The Court, in assessing the validity of truth serum to determine "truth," rejected the Frye method of "counting heads," and, instead, held that it was proper "for the trial judge to decide whether the procedure or technique in question [had] reached a scientific state of verifiable certainty, or . . . whether the procedure ‘rests upon the laws of nature.’" 249 Ga. at 525.

Nowhere in Harper did the Court address the admissibility of the opinions of expert witnesses generally; instead, it addressed only the admissibility of the results of novel "procedures and techniques." Now this Court has granted a petition for certiorari and asked the parties to brief the issue of what standards or factors should govern the admissibility of expert scientific evidence in Georgia, considering Harper and Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).

Appellant Orkin Exterminating Company, Inc. ("Orkin") responds to the Court’s question about the standard for admissibility of expert scientific evidence by claiming that Georgia’s Harper "verifiable certainty" rule is the "same standard being applied in the federal courts under Daubert." Orkin Brief at p.10. It is not. In fact, GTLA strongly disagrees and believes that adoption of the Daubert Rule would be a significant departure from Georgia’s historic and statutorily-created rule that "[t]he opinions of experts on any question of science, skill, trade or like questions shall always be admissible . . ." O.C.G.A. § 24-9-67 (emphasis added). This brief will address first how the Daubert Rule differs from Georgia’s statute. Secondly, it will review the Harper Rule. Third, it will consider whether this Court has the Constitutional power to adopt the Daubert Rule. Fourth, it will address the dire consequences of changing the Harper Rule in favor of Daubert. Finally, it will argue that a Daubert-based Rule would invade the province of the jury.

More specifically, GTLA urges that this Court not adopt the Daubert Rule for the following reasons:

The Daubert Rule is contrary to Georgia’s statutory rule on the admission of expert testimony;
The Harper verifiable certainty rule applies only to the admission of the results of novel procedures and testing techniques, and not expert opinions generally;
The Court does not have the constitutional power to invade the province of the Legislature by adopting a new rule of evidence, particularly one that was recently specifically rejected by the Legislature;
Adoption of the Daubert Rule would have far-reaching dire consequences for Georgia judges, juries and litigants; and
Adoption of the Daubert Rule would invade the constitutional province of the jury.
Each of these reasons will be discussed in more detail in this brief.

It is not the position of GTLA, however, that trial courts are powerless to review speculative or tentative evidence that might underlie an expert’s opinion. They are not. Rather, it is GTLA’s position that Georgia law presumes that the opinion of one who is determined to be an expert, based on education, training, and experience, will be admissible unless that opinion is founded upon a novel technique or procedure which, itself, is inadmissible. Of course, if an expert were basing the whole of his or her opinion on a novel technique or procedure that was determined to be inadmissible, then the expert could not offer the opinion. But if, as is most often the case, the expert was relying on other relevant and admissible evidence, then the opinion would be admitted but the expert could not refer to or rely upon the inadmissible underlying technique or procedure to bolster the basis for the opinion. This fact does nothing to diminish the role of the jury in evaluating competing evidence, whether from experts or not, and does nothing to diminish the power of the judge, either through directed verdict or post-trial ruling, to correct errors.

II. THIS COURT SHOULD NOT ADOPT THE DAUBERT RULE

A. The Daubert Rule Is Contrary to Georgia’s Statutory Rule on the Admission of Expert Testimony

In Daubert, the United States Supreme Court announced a new standard for the admissibility of expert testimony in federal court about novel scientific theories. Prior to Daubert, the courts were split on whether to apply the "general acceptance" test from Frye v. United States, 293 F.2d 103 (D.C. Cir. 1923) or whether to apply the standard adopted in the Federal Rules of Evidence. See, e.g., U.S. v. Downing, 753 F.2d 1224 (3d Cir. 1985). Frye, the Court held, was superseded by the Federal Rules of Evidence, and its "austere standard" should not be applied in federal trials. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). Frye’s "rigid ‘general acceptance’ requirement" was "at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach’ of relaxing the traditional barriers to ‘opinion’ testimony." Id. at 588. But that was not the end of the inquiry; instead, the Court concluded that the Federal Rules of Evidence authorized federal judges to assume a "gatekeeping" role in determining whether scientific evidence was both relevant and reliable.

After an extensive analysis of the components and meaning of Federal Rule of Evidence 702 and its interaction with Rule 703, the Supreme Court held that a federal judge must make a preliminary determination under Federal Rule of Evidence 104(a) of whether the expert’s testimony is based upon scientifically valid methodology. Id. at 592-93. It stated four non-exclusive factors to consider: (1) Whether the expert opinions are based upon a theory or technique that can be tested; (2) the rate of error of such technique; (3) whether the theory or technique has been subject to peer review; and (4) whether the theory or technique has been generally accepted. Id. at 593-94. Although the original decision stressed that the "gatekeeper" function was to address methodology only, and not the resulting opinions and conclusions, without question, federal courts have gone substantially beyond the "methodology" limitation and used the Rule to exclude all kinds of expert opinion. See discussion in "D" infra.

Georgia’s statutory rule regarding the admission of expert testimony is broader than both the former Federal Rule of Evidence 702 and Rule 702 as amended to incorporate Daubert and does not allow such a broad "gatekeeper" role. To the extent Georgia law permits a "gatekeeper" function at all, it is only invoked when one party attempts to introduce the results of a novel test or technique, not an expert opinion, unless the opinion is based on a novel test or technique. The Harper Rule does not in any way alter the fact that, in Georgia, "[t]he opinions of experts on any question of science, skill, trade or like questions shall always be admissible; . . . ." O.C.G.A. § 24-9-67. Thus, as this Court has held, in post-Harper cases, provided an expert is properly qualified in the field in which he or she offers testimony and the facts relied upon are within the bounds of evidence, whether there is sufficient basis upon which to base an opinion goes to the weight and credibility of the testimony, not its admissibility. See generally Flynn v. Mack, 259 Ga.App. 882, 885-86, 578 S.E.2d 488 (2003); Cox v. Allen, 256 Ga.App. 53, 57-8, 567 S.E.2d 363 (2002).

The Daubert "gatekeeper" role is completely inconsistent with the statute’s admonition that the opinion of experts shall always be admissible. Unlike post-Daubert federal courts, the courts of this State have never held that a trial judge is authorized to reject a properly qualified expert’s opinion by examining the "scientific reliability" of his conclusions or by reviewing, in greater detail, the scientific evidence that the expert cites. Federal judges now routinely do just that under the Daubert Rule. Instead, the Georgia courts have demonstrated their faith that juries can decide such questions of fact, just as they decide other factual disputes. That faith, of course, is consistent with the statutory mandate. O.C.G.A. § 24-9-67

Moreover, as the Court of Appeals pointed out in Orkin Exterminating Company, Inc. v. McIntosh, 215 Ga.App. 587, 452 S.E.2d 159 (1994) cert. denied (March 10, 1995), the Daubert Rule is based on the Federal Rules of Evidence, which have not been adopted by the Legislature in Georgia. In that case, Orkin attempted, in an argument that should seem familiar here, to paint the plaintiff’s expert as "outside the mainstream of scientific thought" and advocated the adoption of Daubert to prevent such testimony. 215 Ga.App. at 592. The Court of Appeals concluded:

. . . Daubert involves the application of Federal Rule of Evidence 702, which has not been adopted in Georgia. The applicable law in Georgia is O.C.G.A. § 24-9-67 . . . . Provided an expert witness is properly qualified in the field in which he offers testimony . . . and the facts relied upon are within the bounds of the evidence, whether there is sufficient knowledge upon which to base an opinion or whether it is based upon hearsay goes to the weight and credibility of the testimony, not its admissibility.

215 Ga.App. at 592. The Court also addressed the difference between the Harper Rule and Daubert:

With respect to a particular scientific procedure or technique, the trial court makes a determination ‘whether the procedure or technique in question has reached a scientific stage of verifiable certainty, based upon evidence, expert testimony, treatises, or the rationale of cases in other jurisdictions. . . . However, Orkin does not challenge a particular scientific test or technique employed by plaintiffs’ experts; Orkin challenges the conclusions drawn by those experts from testimony and evidence in the record. This determination is for the jury, and the trial court did not err in denying Orkin’s motions for summary judgment and directed verdict.

Id. at 593 (emphasis added). The Court of Appeals ruled similarly in Jordan v. Georgia Power Co., 219 Ga.App. 690, 693, 466 S.E.2d 601 (1995) cert. granted on whether to adopt Daubert, (Apr. 12, 1996), cert. vacated (Nov. 12, 1996). See also, Norfolk Southern Railway Co. v. Baker, 237 Ga. App. 292, 294, 514 S.E.2d 448 (1995) cert. denied (July 2, 1999) cert. denied 528 U.S. 1021 (1999).

B. The Harper Verifiable Certainty Rule Applies Only to the Admission of the Results of Novel Procedures and Testing Techniques, Not Expert Opinions Generally

Appellant Orkin argues that this Court’s decision in Harper applies the same standard as Daubert. Orkin is clearly wrong. The rule announced in Harper relates solely to whether the results of a new and novel scientific procedure or technique are admissible. The Harper decision does not purport to address the general admissibility of expert testimony; nor have its progeny extended that limited rule to cover the admissibility of expert testimony generally.

The issue in Harper was whether a psychiatrist was permitted to give the results of a "truth serum" test in which the criminal defendant denied the killing of which he was accused. The psychiatrist was allowed to offer his opinion that the defendant suffered from a lapse of memory but could not rely on the truth serum test in doing so. Thus, the expert was allowed to give his opinion generally but could not rely upon the results of the novel "truth serum" test. Harper v. State, 249 Ga. at 524.

Not only have all of the decisions applying Harper involved the admissibility of test results from novel techniques, such as breathalyzer tests (Lattarulo v. State, 261 Ga. 124, 401 S.E.2d 516 (1995)), urinalysis for cannabinoids (Smith v. State, 250 Ga. 438, 298 S.E.2d 482 (1983)) the horizontal gaze nystagmus test for intoxication (Manley v. State, 206 Ga. App. 281, 424 S.E.2d 818 (1992)), or the "ontrack system" for detecting alcohol and controlled substances (Hubbard v. State, 207 Ga. App. 703, 429 S.E.2d 123 (1993)), but this Court has typically commenced its discussion of the issue by stating that Harper involves "the test for admissibility of novel scientific evidence" relating to a new "procedure or technique" and usually has noted that "once the procedure has been recognized in a substantial number of courts, a trial judge may judicially notice" the validity of the procedure. Lattarulo v. State, 261 Ga. at 126. This Court has never applied Harper to expert opinion evidence generally.

Orkin asserts that Carr v. State, 267 Ga. 701, 482 S.E.2d 314 (1997) "confirmed that all expert evidence is subject to the Harper test," Orkin Brief at p. 12. Nothing in Carr supports that assertion. Carr simply held that a dog handler’s testimony about a trained dog’s response as proof of the presence of an accelerant in an arson case was a "novel procedure or technique" subject to the Harper test, and that the State had failed to prove that such dog "alerts" were verifiably certain as substantive evidence for the presence of an accelerant. The opinion neither states nor suggests any support for the assertion that the Harper rule applies to all scientific opinion evidence, and not just to the admissibility of the results of novel procedures or techniques. Nor did it authorize the trial judge to review the scientific evidence and make pronouncements about the "scientific reliability" of the opinion of well-qualified, often preeminent, scientists, such as Orkin advocates here.

Similarly, none of the other cases that Orkin cites in support of its assertion on pages 12 and 13 of its Brief provides any support for the claim. Instead, contrary to how they are cited, they merely stand for the proposition that expert testimony is that which is "beyond the ken of the average layman." Jenkins v. State, 240 Ga. App. 102, 104, 522 S.E.2d 678 (1999).

Nothing in Caldwell v. State, 260 Ga. 278, 393 S.E.2d 436 (1990), on which Orkin relies heavily, is to the contrary. Caldwell merely says that when a technique or procedure is novel, such as the DNA testing at issue in Caldwell, a court may even go so far as to inquire into the actual performance of the test in question. That is, the court in determining whether to admit the results of a novel test or procedure can ask whether the testing lab did it correctly.

C. In Georgia, the Constitutional Power to Adopt Rules of Evidence Rests With the General Assembly, Which Has Specifically Declined to Adopt a Daubert-Type Rule.

The Georgia Constitution gives the power to adopt the substantive rules of evidence to the Legislature. See Ga. Const. Art. VI, § I, ¶ IX. "All rules of evidence shall be as prescribed by law." The General Assembly, through the adoption of O.C.G.A. § 24-9-67, has unequivocally established the substantive standard for admitting expert testimony in the Courts of this state by declaring "[t]he opinions of experts on any question of science, skill, trade, or like questions shall always be admissible . . . ." (emphasis added).

This Court has recognized that, while it may constitutionally impose procedural requirements on the admission of evidence (such as Uniform Superior Court Rule 31.1 imposing a notice requirement on the admission of similar transaction evidence), it cannot adopt substantive rules governing the admission of evidence. That power lies with the General Assembly. See e.g. Preston v. State, 257 Ga. 42, 45, 354 S.E.2d 135 (1987) ("This Rule is one of procedure and not evidence, and it in no way violates the constitutional requirement of separation of government powers."); Pecina v. State, 274 Ga. 416, 420, 554 S.E.2d 167 (2001). Indeed, this Court has often resisted the temptation to encroach on the legislative role and has repeatedly held that the role of the judiciary is not to enact laws but rather to interpret them to give effect to the General Assembly’s purpose and intent. Modern Homes Const.Co v. Burke, 219 Ga. 710, 714-15, 135 S.E.2d 383 (1964) (enacting legislation is the province of the Legislature while construing it is the province of the courts); Abernathy v. City of Albany, 269 Ga. 88, 90, 495 S.E.2d 13 (1998) (statutory construction to be judicially determined by reference to legislative intent); Etkind v. Suarez, 271 Ga. 352, 353, 519 S.E.2d 210 (1999) ("doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced.")

It is the sole province of the Legislature, and not of this Court, to change statutory law. In Martin v. Gaissert, 139 Ga. 693, 697, 78 S.E. 40 (1913), this Court held, "we cannot enlarge [a] statute beyond the limits prescribed by the Legislature. It is within their province, and not ours, to extend the provisions of the statute, if they so desire. Until such time as they see fit to do so, we must construe the statute as we find it." See also Young v. Williams, 274 Ga. 845, 848, 560 S.E.2d 690 (2002) (rejecting Court of Appeals’ adoption of continuous treatment doctrine that would judicially extend medical malpractice statute of limitation because judiciary is not empowered to add provisions to what General Assembly has enacted); Gary v. State, 262 Ga. 573, 575-76, 422 S.E.2d 426 (1992) (engrafting a federally created "good faith" exception to the exclusionary rule in O.C.G.A. §17-5-20 would be impermissible judicial legislation); and Gibson v. Turpin, 270 Ga. 855, 863, 513 S.E.2d 186 (1999) (quoting the U.S. Supreme Court’s statement in Gregg v. Georgia that "we may not act as judges as we might as legislators.")

In the session concluded just two months ago, the General Assembly specifically declined to do that which appellant now asks this Court to do; it declined to impose the standards of Fed.R.Evid. 702 to medical malpractice cases pending in Georgia courts. Specifically, Senate Bill 133, as introduced, included a provision that would have amended O.C.G.A. §24-9-67 by adding language, essentially verbatim, from the federal evidence rule:

(c) In a professional malpractice action, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts, or date which has been admitted into the evidence at the trial of the case;

(2) The testimony is the product of reliable principles and methods; and

(3) The witness has applied the principles and methods reliably to the facts of the case.

Compare Fed.R.Evid. 702. When SB 133 emerged from committee, that language had been removed. Thus the Legislature of this State rejected an attempt to impose Daubert and its progeny on the Courts and the citizens, just as it had, a few years earlier, rejected the adoption of the Federal Rules of Evidence, despite the recommendation of a committee of the State Bar. This Court does not have the authority to undermine the Legislative will with the judicial adoption of Daubert, or any variant of Daubert, any more than it would have had the authority to adopt the Federal Rules of Evidence after the Legislature’s rejection.

The Georgia Court of Appeals has already spoken on this issue – multiple times – and has steadfastly recognized that neither Fed.R.Evid. 702 nor Daubert reflects Georgia law on the admissibility of expert testimony. Orkin Exterminating Co. v. McIntosh, supra. See also Jordan v. Georgia Power Co., supra, and Norfolk Southern Railway Co. v. Baker, supra. In fact, this Court previously granted certiorari on the question of whether to adopt the Daubert Rule, but after oral argument, wisely recognized its lack of power to do so and entered an order stating that certiorari had been improvidently granted. Jordan v. Georgia Power Co., supra. Nothing has changed that should alter that result.

D. Adoption of the Daubert Rule Would Have Far-Reaching Dire Consequences for Georgia Judges, Juries, and Litigants.

In his dissent in Daubert, Chief Justice Rehnquist criticized the Court’s formulation of the trial judge’s responsibility in determining admissibility of expert testimony because it left open more questions than it answered. Daubert, 509 U.S. at 600. He noted that the vagueness and ambiguity in defining the "gatekeeper" role would greatly test the capacity of trial judges and impose on them the obligation to become "amateur scientists" in order to do their job. Id. at 601.

Judges have found the Chief Justice to be prescient on this subject. The Daubert Rule has had far-reaching, and often unanticipated, consequences in the federal courts. Anyone contemplating imposing a Daubert type rule on Georgians should first contemplate the disastrous consequences that the rule has imposed upon federal courts, and federal court litigants – as the General Assembly obviously did just this year. More specifically, the Daubert Rule in federal court has caused the following:

a) It has added substantially to the burden on trial courts by requiring the expenditure of significant time and resources in evaluating "scientific reliability" in all cases in which such expert testimony is expected;

b) It has imposed a role of scientific review on federal judges which most judges are no better equipped by education, experience and training, to handle than juries are;

c) It has given trial judges discretion to substitute their own views about "science" for those of duly qualified experts, on a case-by-case basis;

d) It has frequently led to inconsistent, contradictory and unpredictable results in different cases involving the same scientific issues;

e) It has added enormously to the expenses and attorneys’ fees imposed on litigants;

f) The Daubert Rule, as a practical matter, has shifted the decision on scientific causation from juries in trials to judges in pretrial proceedings; and

g) It has created a trap for both the unwary and the careful litigator because, given discovery and motion deadlines, one can never be sure that one’s experts will survive the post-discovery Daubert bench trial, and so both plaintiffs’ and defendants’ attorneys must either over-spend both money and time lining up redundant experts or risk losing all just before trial.

It must be expected that the adoption of the Daubert Rule in Georgia would result in the same problems it has caused in federal courts.

1. The Daubert Rule Will Impose Further Burdens on Trial Courts.

Judge Kosinski described the role that Daubert now imposes on federal judges in his opinion in Daubert on remand:

[f]ederal judges ruling on the admissibility of expert scientific testimony face a far more complex and daunting task in a post-Daubert world than before . . . .

As we read the Supreme Court’s teaching in Daubert . . . though we are largely untrained in science and certainly no match for any of the witnesses whose testimony we are reviewing, it is our responsibility to determine whether those experts’ proposed testimony amounts to ‘scientific knowledge,’ constitutes ‘good science,’ and was ‘derived by the scientific method.’

. . . .

Our responsibility, then, unless we badly misread the Supreme Court’s opinion, is to resolve disputes among respected, well-credentialed scientists about matters squarely within their expertise, in areas where there is no scientific consensus as to what is and what is not ‘good science,’ and occasionally reject such expert testimony because it is not ‘derived by the scientific method.’ Mindful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task.

Daubert v. Merrell Dow Pharm, Inc., 43 F.3d 1311, 1315 (9th Cir. 1995).

If the Georgia General Assembly were to adopt the procedural and analytical framework set out in Daubert and its progeny, the workload of the trial bench would, no doubt, increase dramatically – both in civil cases and in criminal cases. In virtually every case in which an "expert" witness was involved, whether a crime lab employee or a Nobel Prize- winning economist or the chair of the cardiology department at Emory, there is a high probability that there would be a Daubert-based challenge to the proffered opinion, because that is exactly what has occurred in federal courts. See, generally, Molly Treadway Johnson, Carol Krafka, and Joe S. Cecil, Expert Testimony in Federal Civil Cases: A Preliminary Analysis (Federal Judicial Center 2000); and Carol Krafka, et al., Judge and Attorney Experiences, Practices, and Concerns Regarding Expert Testimony in Federal Civil Trials (Federal Judicial Center 2002)(excerpted from 8 Psychology, Public Policy And Law 3:309-32 (2002).

A recent analysis of the published federal cases regarding Daubert motions confirmed that the Rule had "triggered a deluge" of motions to exclude expert testimony, "especially in . . . civil cases." D. Michael Risinger, Navigating Expert Reliability, 64 ALB L. REV. 99, 104 (2000). Thus, in the first six years after the decision, federal courts published 1065 opinions on expert admissibility on such motions, 871 of which involved civil cases, or 36 times as many cases as the previous six-year period. Id.

Many federal judges are holding multi-day, even multi-week, hearings attempting to sort through every piece of evidence on which an expert has relied in order to ascertain whether, in the opinion of the judge, that piece of evidence is sufficiently "reliable" to support the expert’s conclusion. Unlike juries, the courts are not passing on the credibility of the opinion being offered; rather, they are actually attempting to resolve the scientific controversy which underlies the legal dispute in the courtroom. Because the courts are attempting to understand and decide complex scientific issues, the parties are compelled to burden the record with mountains of data and scientific evidence, creating an almost endless record.

Leaving aside the substantive issue of whether witnesses are allowed to testify, equally important is the time that trial courts are being forced to devote, often pre-trial, to evidentiary issues. Two federal cases provide a hint of what the Georgia trial judges could be in for if this Court were to adopt Daubert. In one case, Soldo v. Sandoz Pharms. Corp., 244 F.Supp.2d 434 (W.D.Pa. 2003), the trial court held an evidentiary Daubert hearing and heard testimony from medical experts on both sides. The post-hearing record contained voluminous exhibits, medical treatises, and extensive briefs and proposed findings and conclusions. That was not, apparently, enough. The trial judge then appointed his own team of three experts (the expenses of which were charged to the parties), pursuant to Fed.R.Evid. 706, to evaluate the evidence that the parties had submitted Then, after receiving their reports, he issued his own Findings and Conclusions, containing some 947 separate findings of fact.

Magistrini v. One Hour Martinizing Dry Cleaning, 180 F.Supp.2d 584 (D.N.J. 2002) is a further example. There, David Ozonoff, who holds an M.D. from Cornell and an M.P.H. from Johns Hopkins and who is a Professor in the Schools of Public Health and Medicine at Boston University and is Chairman of the Department of Environmental Health, attempted to offer causation evidence that the plaintiff’s acute myelomonocytic leukemia (AMML) was related to her occupational exposure to perchloroethylene (PCE) while working at a dry cleaner, a subject matter on which he has done extensive original research and published various articles in peer-reviewed scientific journals. In reaching his opinion, Dr. Ozonoff applied the "weight-of-the-evidence" methodology, a methodology used by both the United States Environmental Protection Agency, the International Agency for Research on Cancer, the National Cancer Institute and all other national and international scientific and health organizations. The plaintiff submitted the affidavits of two additional renowned, internationally-recognized scientists, Drs. Philip Landrigan and Anthony Robbins that Dr. Ozonoff’s opinion was "scientifically reliable." Nonetheless, the trial judge, who was totally untrained in science, conducted lengthy hearings and then substituted his view of what constituted "good science" for that of three renowned mainstream scientists. Surely, no reasonable person would want to impose these lengthy, demanding, and time-consuming procedures on the State’s already over-burdened trial courts.

2. Most Judges Are Not Better Equipped to Decide Scientific Questions Than Are Juries.

The unstated premise of those who advocate the Daubert Rule is that juries cannot be trusted to decide scientific matters and that judges are better equipped to deal with such complex questions. But, the published empirical evidence demonstrates the converse: judges are not better prepared by education, training or experience than juries to decide scientific controversies.

There have been at least four published studies evaluating the ability of judges to understand and evaluate basic scientific matters. Unfortunately the jurists did not fare well in any of the studies. Kovera and McAuliff found in a study of 144 Florida circuit judges that they performed poorly in evaluating the methodological problems affecting the validity of certain experimental studies. M. Kovera and B. McAuliff, The Effects of Peer Review and Evidence Quality on Judge Evaluations of Psychological Science: Are Judges Effective Gatekeepers? 85 Journal Of Applied Psychology. 574-86. (2000). Wells also found that judges were susceptible to substantial errors and performed no better than laypersons in making probability inferences from basic statistical data. G. Wells, Naked Statistical Evidence of Liability: Is Subjective Probability Enough? 62 Journal Of Personality And Social Psychology. 739. (1992). A similar conclusion was reached in an experiment conducted on 167 federal magistrate judges. C. Guthrie, J. Rachlinski and A. Wistrich, Inside the Judicial Mind, 86 Cornell L. Rev. 777 (2001).

Gatowski, et al. surveyed 400 state trial court judges representing all fifty states about their understanding of the basic scientific criteria outlined in Daubert. Only four percent of the judges could give an explanation of the "falsifiability" criterion of Daubert and 35 percent gave answers that were unequivocally wrong. Similarly, only four percent could explain the criterion of "error rate" and 86 percent gave answers that were unequivocally wrong. S. Gatowski, S Dobbin, J. Richardson, G. Ginsburg, M Merlino and V. Dahir, Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert World, 25 Law And Human Behavior. 433-458 (2001). The explanation given for the poor performance in most articles is that most judges simply do not have any education, training or experience in scientific matters. Yet the Daubert Rule calls upon them to pass judgment on the "reliability" of qualified scientific experts.

It is no wonder that some judges, untrained in science, simply make fundamental scientific errors in deciding Daubert motions, a fact that is becoming more obvious and of great concern to the scientific community. See, e.g., J. Kassirer and J. Cecil, Inconsistency in Evidentiary Standards for Medical Testimony, 288 J.A.M.A. 11:1382 (2002) ("The courts appear to be asserting standards that they attribute to the medical profession, but that are inconsistent and sometimes more demanding than actual medical practice.") An entire conference of preeminent scientists was recently devoted to discussing the problem of Daubert and its negative impact on science. See The Coronado Conference on Scientific Evidence and Public Policy, March 13-14, 2003. The papers from that conference, (for the most part critical of the Daubert Rule), will be published within the next few months.

One of the most glaring examples of simply getting the science wrong was in the Daubert decision itself. Justice Blackmun undertook, over the strenuous objection of the Chief Justice, to define "science." He relied primarily on the writings of Dr. Karl Popper, who made "falsifiability" the defining quality of a scientific hypothesis. Apparently unknown to Justice Blackmon was the fact that Popper’s theory, originally advanced almost 40 years earlier, has been universally rejected by today’s philosophers of science. See, e.g. R. Klee, Introduction to the Philosophy of Science, Oxford University Press, p.67 (1997). A similar example are the numerous published decisions on Daubert motions rejecting animal studies as appropriate scientific evidence, despite the fact that the whole of modern medicine is based on the premise that well-designed and controlled animal studies are predictive of human results, and that premise underlies the entire governmental regulatory process. Compare, e.g. Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F. 2d 1349 (6th Cir. 1992) with the comments in the leading textbook of toxicology, Casarett And Doull’s Toxicology, p. 27 (5th Ed. 1996). This Court should not force our judges to enter this fray.

The empirical evidence also demonstrates that juries are capable, perhaps more so than judges, of deciding scientific disputes. R. Perry Sentell, Jr., conducted a number of surveys on the jury system, and particularly on the question of juror competence to address complex issues in civil cases, and directed the surveys to Georgia trial judges, federal judges sitting in Georgia, and Georgia lawyers representing both plaintiffs and defendants. The surveys directed to the judges called for them to identify how often their own decision would be different from the jury’s verdict, and in any case in which the judge disagreed with the jury, to consider whether the jury’s ability to understand the evidence was a reason for the disagreement between the judge and jury. The surveys showed that in a large majority of the case, there was no disagreement between the verdict and the result the judge would have rendered. In cases where the judges disagreed with the juries, they overwhelmingly rejected the juries’ lack of comprehension as a reason for the disagreement. These results squared with the results in national surveys of judges. Harry Kalven, Jr., The Dignity of the Civil Jury, 50 Va. L. Rev. 1055, 1066-67 (1964).

Moreover, the empirical evidence contradicts claims of critics that jurors, confronted with difficult scientific or medical issues, become easily misled and biased for the injured parties. Neil Vidmar examined common challenges to the competency of jurors in medical malpractice cases in light of studies of juror behavior and concluded that jurors are not biased in favor of plaintiffs, that jurors are not naïve about experts or easily misled by scientific evidence, and most strikingly, that jury verdicts correlate well with medical peer-reviews of the defendant doctor’s conduct. Neil Vidmar, Scientific and Technological Evidence: Are Juries Competent to Decide Liability in Tort Cases Involving Scientific/Medial Issues? Some Data from Medical Malpractice, 43 Emory L.J. 885 (1994). Thomas A. Eaton and Susette M. Talarico recently found that plaintiffs’ rate of success is lowest in the categories of cases (product liability and medical malpractice) that are more likely to be determined by scientific evidence and concluded that the evidence reflects a jury system to appears to be more rational than many of its critics suggest." Thomas A. Eaton and Susette M. Talarico, Another Brick in the Wall: An Empirical Look at Georgia Tort Litigation in the 1990’s, 34 Ga.L.Rev. 1049, 1087-88 (2000).

3. Daubert Provides a Broad and Uncontrolled Grant of Discretion to Trial Judges to Substitute Their Views on Science for The Views of Qualified Experts.

The fact that trial judges have difficulty deciding scientific matters and frequently simply get the science wrong is particularly significant because, in federal court, there is no effective check or balance on their power to decide matters of science. In the second decision in the Daubert trilogy, the U.S. Supreme Court allowed trial judges to have the final say on whether scientific evidence should or should not be admitted as evidence. In General Electric v. Joiner, 522 U.S. 136 (1997) the Court held that the district court decisions concerning admissibility could be overturned only on the limited ground of abuse of discretion. Daubert and Joiner amount to a broad, and largely uncontrolled, grant of discretion to lower court judges to declare on a case-by-case basis what counts as "science."

Consequently, there are numerous examples of trial judges, untrained in science, substituting their judgment of the scientific evidence for that of preeminent experts in their field. We provided the example earlier of Professor David Ozonoff’s testimony being rejected by a trial judge despite the fact that Dr. Ozonoff used the standard and universally-accepted methodology in evaluating the extensive scientific evidence on the subject. Unfortunately, it is not unusual for federal judges to declare that the published work of recognized scientists, often supported by millions of dollars of federal grant money, and peer-reviewed by other eminent scientists, is not "scientifically reliable." Ironically, unlike the publications of the scientists, such judicial decisions are not peer-reviewed because under the abuse of discretion standard there is, effectively, no review at all of Daubert rulings.

4. Daubert Has Led to Inconsistent, Contradictory and Unpredictable Results.

As noted above, Daubert and its progeny amount to a broad and largely uncontrolled grant of discretion to lower court judges to declare on a case-by-case basis what constitutes "good science." Consequently, it is not surprising that it has led to inconsistent, contradictory and unpredictable results on the same issues in different cases.

For example, in the criminal area, since Daubert, federal courts have struggled with the admissibility of handwriting analysis and have published inconsistent opinions. In United States v. Dennis Mooney, 315 F.3d 54 (1st Cir. 2002), the Court of Appeals concluded that the district court’s decision to permit a government expert to testify that the defendant had written certain letters was correct:

[a] review of the district court’s voir dire hearing on the admissibility of the handwriting expert’s proposed testimony reveals that the judge did not abuse his discretion. The expert testified that he and other forensic document examiners employ the same methodology to analyze and compare a known individual’s handwriting samples to the handwriting on the document at issue. This methodology has been subject to general peer review through published journals in the field. In addition, its accuracy has been tested, with one study concluding that certified document examiners had a potential rate of error of 6.5%. The proffered expert indicated that he was certified by the American Board of Forensic Document examiners to apply this methodology. He also testified that he submitted to proficiency tests twice a year, and that all of his work is reviewed and confirmed by at least one other document examiner.

At the close of the hearing, the district judge concluded that the handwriting expert’s proposed testimony should be admitted in its entirety because it was reliable and based upon valid technical and specialized knowledge.

315 F.3d at 62. The Court upheld the admission of the testimony.

However, in United States v. Hidalgo, 229 F.Supp.2d 961 (D.Az. 2002), the court reached a contrary result after a very careful analysis and refused to permit the testimony of a forensic document examiner as to authorship:

[b]efore Daubert, handwriting analysis testimony was admissible under the Frye general acceptance standard. See e.g. United States v. Fleishman, 684 F.2d 1329, 1337 (9th Cir. 1982) (‘It is undisputed that handwriting analysis is a science in which expert testimony assists a jury.’) Robles v. United States, 279 F.2d 401, 404-05 (9th Cir. 1960) (‘It is well settled that an expert in handwriting may testify and state his opinion as to whether different documents or signatures were written by the same person. . . .’) Daubert and Kumho, however, have changed the general rules of admissibility. Because general acceptance is now but one of many factors a trial court may consider, it no longer serves as the sine qua non of admissibility. Courts are now confronting challenges to testimony as here, whose admissibility had long been settled.

* * * * *

We have located nine district court cases that have directly addressed the issue of whether the expert testimony of a forensic document examiner is admissible under Daubert and Kumho. No consensus has emerged. Only two courts have found the testimony to be reliable and fully admissible. . . . Four courts have determined that the forensic document examiner’s testimony was not based on sufficiently reliable principles and methodologies under Daubert/Kumho and fully excluded the expert’s testimony. . . . Three courts reached a middle position, permitting the forensic document examiner to testify as to particular similarities and dissimilarities between the documents, but excluding the ultimate opinion as to authorship.

229 F.Supp.2d at 966. (citations omitted)

The same anomalies are seen in some civil cases. Parlodel is a drug that is given to post-partum women to prevent lactation. Some women have asserted that they suffered hemorrhagic strokes, ischemic strokes, and myocardial infarctions following administration of the drug. The litigation results have been mixed but, in one circuit, an appellate court has affirmed the Daubert-based exclusion of the plaintiff’s causation experts, while in other cases arising out of other districts in the same circuit, overlapping theories, overlapping experts, and overlapping supporting evidence have survived exclusion motions. Compare Rider v. Sandoz Pharm. Corp., 295 F.3d 1194 (11th Cir. 2002); Globetti v. Sandoz Pharm. Corp., 111 F.Supp.2d 1174 (N.D.Ala. 2000) and Brasher v. Sandoz Pharm. Corp., 160 F.Supp.2d 1291 (N.D.Ala. 2001).

These inconsistent, often contradictory, results should come as no surprise because in General Electric Co. v. Joiner, 522 U.S. 136 (1997) the Court’s application of the abuse of discretion rule means that had the trial court admitted the evidence instead of excluding it, the court would also have upheld the decision. Georgia should not tolerate such potential anomalies.

5. Adoption of the Daubert Rule Would Add Significantly to the Litigation Costs.

Not only has Daubert increased the burden on trial judges, it has added significantly to the transaction costs of the litigants. See comments of U.S. District Court Judge D. Brock Hornsby. Appellate Judges: Think Before You Publish, 22 LITIGATION, 2:3 (Winter 1996). See also, Note, The Limitations of Daubert and Its Misapplication to Quasi-Scientific Experts, a Two-Year Case Review of Daubert, 35 Washburn L.J. 134 (Fall 1995).

It has added to the transaction costs in several ways. First, it forces plaintiffs (and the burden does fall largely on civil plaintiffs) to spend more time and more money having their experts get prepared for the anticipated Daubert motion. Secondly, it encourages the defendant to add experts to testify about the "scientific reliability" of the plaintiff’s experts. Third, it requires the parties to spend substantial time and money preparing for and attending Daubert hearings. It is not unusual for the hearing to take dramatically more time than the expert testimony would take at trial.

Finally, it adds to the transaction costs for plaintiffs because fewer and fewer "bench" scientists are willing to risk having their work labeled "unreliable" by some judge. Thus, the field has been abandoned to the "courtroom scientists," not the researchers, who in turn are likely to charge more for their time. Daubert has had exactly the opposite effect of what was intended: it has reduced the quality of science in the courtroom while driving up the costs to the parties to present it.

6. Adoption of the Daubert Rule Would Shift the Decision-making from Juries in Trials to Judges in Pretrial Proceedings.

The bottom line is that the Daubert Rule changes who decides certain kinds of cases from juries to judges. A decision to adopt the Rule is a decision to give a distinct advantage to defendants, or at least that is what has happened in the federal courts.

The noted legal scholar and expert on evidence Professor Margaret Berger addressed the problem in her seminal work, Upsetting the Balance Between Adverse Interests: The Impact of the Supreme Court’s Trilogy on Expert Testimony in Toxic Tort Litigation, 64-SUM Law And Contemporary Probs. 289 (2001). She observed that the Daubert trilogy had shifted the decision-making from juries in trials to judges in pretrial proceedings. Federal judges are much more likely to exclude scientific evidence, often on a basis of "new rules in the name of science that do not exist in the scientific community." Id. at 302. One example is the rejection of animal studies. Id. Another is the misapplication of statistical principles. Id. at 306-7. The consequence is that in certain kinds of litigation, such as toxic torts, the law has been reformulated to the distinct advantage of defendants, by allowing judges to decide factual disputes regarding science instead of juries. Id. at 290.

Professor Sheila Jasanoff at Harvard Law School has echoed these concerns and labeled the new science being asserted by certain federal judges as "courtroom science," in contrast to real science. See, e.g., S. Jasanoff, Hidden Experts: Judging Science After Daubert, The Coronado Conference on Scientific Evidence and Public Policy (2003).

E. Adoption of the Daubert Rule Would Invade the Constitutional Province of the Jury.

Shifting decision-making from juries to judges violates a fundamental principle of constitutional law in Georgia. Georgia long ago decided that factual disputes, even complicated ones, should be decided by juries, not judges.

Colonial Georgia experienced the same problems with concentrated judicial power that led other states and the United States to adopt the jury as a fundamental component of the justice system. The worst of the colonial judges were despotic and dictatorial. Warren Grice, The Georgia Bench And Bar, 32-34 (J.W. Burke Co., 1930). Private individuals who incurred their displeasure could be brought to trial (even capital trials) with the magistrate serving also as chief prosecuting witness or prosecutor. Id. at 22, 27-28. The magistrate exercised the power to refuse jury verdicts and to send the jury back for the desired verdict or to "mould" its verdict for the desired result. Id. at 22, 25. At the other extreme, judges were dismissed for siding with malcontents: or for opposing the royal governor. Id. at 32, 43-45. And in between the extremes, judges were simultaneously members of the Governor’s council (Id. at 40, 41) and were seen to be part of the oppressive government that necessitated disobedience (Id. at 52 - jurors refused to be sworn in order to stop the proceedings in civil debt collection matters) and ultimately revolution. As a result, Georgia, along with all other states and the federal government, instituted the jury as a fundamental part of its political structure. See, Tift v. Griffin, 5 Ga. 185, 188-89 (1848), for an early history of the right to jury trial in Georgia.

Consistent with Georgia’s commitment to the jury system is a legislatively-created rule of evidence that provides that "[t]he opinions of expert on any question of science, skill, trade or like question shall always be admissible . . ." O.C.G.A. § 24-9-67. Taking the decision on the "reliability" of scientific evidence away from the jury is not only contrary to the statute but to Georgia’s constitutional history. Adoption of the Daubert Rule invades the constitutional province of the jury.

III. CONCLUSION

For all the reasons stated herein, this Court should decline Orkin’s invitation to equate the Harper Rule with the Daubert Rule and should, instead, acknowledge the validity of O.C.G.A. § 24-9-67, along with Harper.

/s/ David B. Bell

/s/ Charles M. Cork, III

/s/ Andrew M. Scherffius

/s/ James E. Butler, Jr.

/s/ Joel Wooten

/s/ Robert E. Shields

/s/ Leslie J. Bryan