Daubert standard in Georgia

2023Nor has he reliably applied any standard to the facts of this case.12 When engaging in a reliability analysis, courts must be careful to focus on the expert’s “principles and methodology, not on the conclusions that they generate.” See Daubert, 509 U. S. at 595 (II) (B); see also Webster v. Desai, 305 Ga. App. 234, 235 (1) ( 699 SE2d 419 ) (2010) (referencing the four non-inclusive Daubert factors for assessing reliability, which include an 12 We do not decide, in this opinion, what standard of care applies in situations such as the one presented here; we find only that McCans failed to articu

2014For the same reasons, however, the trial court did not abuse its discretion by allowing Ameris’ other expert to testify. 7 509 U. S. 579 ( 113 SCt 2786 , 125 LE2d 469) (1993). 5 consideration of the facts and data upon which the opinion is based, whether the opinion is a product of reliable principles and methods, and whether the opinion was reached by a reliable application of those principles and methods to the facts of the case.8 In WCI Properties, Inc. v. Community & Southern Bank, this Court addressed a similar argument regarding the admission of an appraiser’s testimony in the face of a

2026See Garrison v. State, 319 Ga. 711 , 725–26 (2024) (explaining “that we appear not yet to have expressly analyzed the extent to which the Daubert standard and the former Harper standard differ” and declining to analyze the differences in the standards in that case, “other than to clarify that they are not the same”).

2026See Garrison v. State, 319 Ga. 711 , 725–26 (2024) (explaining “that we appear not yet to have expressly analyzed the extent to which the Daubert standard and the former Harper standard differ” and declining to analyze the differences in the standards in that case, “other than to clarify that they are not the same”).

2019Thus, Rule 702 "imposes a special obligation upon the trial judge" to act as "gatekeeper." Scapa Dryer Fabrics, Inc. , 299 Ga. at 289 , 788 S.E.2d 421 (citing Kumho Tire Co. v. Carmichael , 526 U.S. 137 , 147 (II) (A), 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999) ); see also Dubois v. Brantley , 297 Ga. 575 , 585, 775 S.E.2d 512 (2015). [W]hen a party offers expert testimony and the opposing party raises a Daubert challenge, the trial court must make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellec

2019Thus, Rule 702 "imposes a special obligation upon the trial judge" to act as "gatekeeper." Scapa Dryer Fabrics, Inc. , 299 Ga. at 289 , 788 S.E.2d 421 (citing Kumho Tire Co. v. Carmichael , 526 U.S. 137 , 147 (II) (A), 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999) ); see also Dubois v. Brantley , 297 Ga. 575 , 585, 775 S.E.2d 512 (2015). [W]hen a party offers expert testimony and the opposing party raises a Daubert challenge, the trial court must make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellec

2024See 2022 Ga. Laws, p. 201, § 1 (amending OCGA § 24-7- 702).” Smith v. State, 315 Ga. 287, 300 (2) (b) n.6 (882 SE2d 300) Daubert standard and the former Harper standard differ.

2024See 2022 Ga. Laws, p. 201, § 1 (amending OCGA § 24-7- 702).” Smith v. State, 315 Ga. 287, 300 (2) (b) n.6 (882 SE2d 300) Daubert standard and the former Harper standard differ.

2024In determining the admissibility of expert testimony under the Daubert standard, “the trial court acts as a gatekeeper, assessing both the witness’ qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony.” HNTB Georgia, Inc. v. Hamilton-King, 287 Ga. 641, 642 35 (1) (697 SE2d 770) (2010).

2024In determining the admissibility of expert testimony under the Daubert standard, “the trial court acts as a gatekeeper, assessing both the witness’ qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony.” HNTB Georgia, Inc. v. Hamilton-King, 287 Ga. 641, 642 35 (1) (697 SE2d 770) (2010).

2013Village at Lake Lanier, supra at 502 (2) (b) (trial court did not abuse its discretion in refusing to hold a Daubert hearing as to appraiser’s credentials in a confirmation proceeding; any dispute went to the weight and credibility of the appraiser’s testimony rather than its admissibility); Blue Marlin, supra at 123 (2).

2013Village at Lake Lanier, supra at 502 (2) (b) (trial court did not abuse its discretion in refusing to hold a Daubert hearing as to appraiser’s credentials in a confirmation proceeding; any dispute went to the weight and credibility of the appraiser’s testimony rather than its admissibility); Blue Marlin, supra at 123 (2).

2025Garrison, 319 Ga. at 716 (1) (citation and punctuation omitted). 5 SE2d 629 ) (2024) (OCGA § 24-7-702 extended the Daubert standard to criminal cases effective July 1, 2022); Dubois v. Brantley, 297 Ga. 575, 580 (2) ( 775 SE2d 512 ) (2015) (OCGA § 24-7-702 “is based upon Federal Rule of Evidence 702”).

2025Garrison, 319 Ga. at 716 (1) (citation and punctuation omitted). 5 SE2d 629 ) (2024) (OCGA § 24-7-702 extended the Daubert standard to criminal cases effective July 1, 2022); Dubois v. Brantley, 297 Ga. 575, 580 (2) ( 775 SE2d 512 ) (2015) (OCGA § 24-7-702 “is based upon Federal Rule of Evidence 702”).

2012See Hankla v. Jackson, 305 Ga. App. at 393 (1) (b) (“Applying the Daubert standard, expert testimony is admissible if it is both relevant and reliable.”) (punctuation and footnote omitted).

2012See Hankla v. Jackson, 305 Ga. App. at 393 (1) (b) (“Applying the Daubert standard, expert testimony is admissible if it is both relevant and reliable.”) (punctuation and footnote omitted).

2025Id. at 1239 & n. 5.

2023Kershaw, 348 Ga. App. at 783, quoting McClain v. Metabolife Intl., 401 F3d 1233, 1237 (II) (11th Cir. 2005). 14 Kershaw, 348 Ga. App. at 783-784, citing HNTB Ga. v. Hamilton-King, 287 Ga. 641, 642 (1) ( 697 SE2d 770 ) (2010). 15 (Punctuation omitted.) Kershaw, 348 Ga. App. at 784, quoting McClain, 401 F3d at 1238 (II). 16 Because the record does not contain a transcript of the summary judgment hearing, we do not know whether the motion to strike was addressed or even mentioned at the hearing. 12 considered the admissibility of Cox’s experts’ testimony, which ruling may be dispositive of Cox’s

2016See Butler v. Union Carbide Corp., 310 Ga. App. 21, 32 ( 712 SE2d 537 ) (2011) (“Twelve years after Daubert, the Georgia Legislature in 2005 passed [the predecessor statute to OCGA § 24-7-702], which adopted the Daubert test for expert opinion testimony in civil actions in Georgia’s state courts.”).

2016See Butler v. Union Carbide Corp., 310 Ga. App. 21, 32 ( 712 SE2d 537 ) (2011) (“Twelve years after Daubert, the Georgia Legislature in 2005 passed [the predecessor statute to OCGA § 24-7-702], which adopted the Daubert test for expert opinion testimony in civil actions in Georgia’s state courts.”).

2026And the trial court examines reliability through a consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training. 3 We have recently explained that “OCGA § 24-7-702 was amended in 2022 to apply in all proceedings rather than only in all civil proceedings” and that “[w]ith that amendment … the General Assembly

2026And the trial court examines reliability through a consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training. 3 We have recently explained that “OCGA § 24-7-702 was amended in 2022 to apply in all proceedings rather than only in all civil proceedings” and that “[w]ith that amendment … the General Assembly

2023See United States v. Frazier, 387 F3d 1244, 1260 (III) (A) (11th Cir. 2004) (“While there is inevitably some overlap among the basic requirements – qualification, reliability, and helpfulness – 18 they remain distinct concepts and the courts must take care not to conflate them.”).

2023See United States v. Frazier, 387 F3d 1244, 1260 (III) (A) (11th Cir. 2004) (“While there is inevitably some overlap among the basic requirements – qualification, reliability, and helpfulness – 18 they remain distinct concepts and the courts must take care not to conflate them.”).

2013Village at Lake Lanier, supra at 502 (2) (b) (trial court did not abuse its discretion in refusing to hold a Daubert hearing as to appraiser’s credentials in a confirmation proceeding; any dispute went to the weight and credibility of the appraiser’s testimony rather than its admissibility); Blue Marlin, supra at 123 (2).

2013Village at Lake Lanier, supra at 502 (2) (b) (trial court did not abuse its discretion in refusing to hold a Daubert hearing as to appraiser’s credentials in a confirmation proceeding; any dispute went to the weight and credibility of the appraiser’s testimony rather than its admissibility); Blue Marlin, supra at 123 (2).

2013OCGA § 44-14-161 (b) provides that “[t]he court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.” The confirmation statute “is in derogation of common law and must be strictly construed.” (Citation and punctuation omitted.) 129 Acres, Inc. v. Atlanta Business Bank, 311 Ga. App. 462, 463 ( 716 SE2d 536 ) (2011).

2013OCGA § 44-14-161 (b) provides that “[t]he court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.” The confirmation statute “is in derogation of common law and must be strictly construed.” (Citation and punctuation omitted.) 129 Acres, Inc. v. Atlanta Business Bank, 311 Ga. App. 462, 463 ( 716 SE2d 536 ) (2011).

2013On appeal, however, this Court reversed the trial court’s ruling, holding that the application of the Daubert factors in determining the admissibility of expert testimony is intended to be flexible and that “those factors may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” (Punctuation andfootnote omitted.) Hamilton-King v. HNTB Ga., 296 Ga. App. at 868 (1).

2013On appeal, however, this Court reversed the trial court’s ruling, holding that the application of the Daubert factors in determining the admissibility of expert testimony is intended to be flexible and that “those factors may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” (Punctuation andfootnote omitted.) Hamilton-King v. HNTB Ga., 296 Ga. App. at 868 (1).

2011Moran v. Kia Motors America, Inc., [ 276 Ga. App. 96, 97 (1) ( 622 SE2d 439 ) (2005)]. 15 Thus, since the doctor expert’s opinion must be based on scientifically valid decisions, the four-element Daubert test is appropriate and should be applied. 16 Both the Plaintiff and the Defendant’s pleadings, briefs, and letters made extensive reference to the cases in states that appear to still use the Frye test without denoting this.

2011Moran v. Kia Motors America, Inc., [ 276 Ga. App. 96, 97 (1) ( 622 SE2d 439 ) (2005)]. 15 Thus, since the doctor expert’s opinion must be based on scientifically valid decisions, the four-element Daubert test is appropriate and should be applied. 16 Both the Plaintiff and the Defendant’s pleadings, briefs, and letters made extensive reference to the cases in states that appear to still use the Frye test without denoting this.

2023The trial court denied summary judgment in a succinct order without mention of or a ruling on the Daubert motion.16 Thus, we do not know whether the trial court 12 (Punctuation omitted.) Id., quoting Scapa Dryer Fabrics, 299 Ga. at 289 (addressing former OCGA § 24-7-702). 13 (Punctuation omitted; emphasis in original).

2019Thus, Rule 702 "imposes a special obligation upon the trial judge" to act as "gatekeeper." Scapa Dryer Fabrics, Inc. , 299 Ga. at 289 , 788 S.E.2d 421 (citing Kumho Tire Co. v. Carmichael , 526 U.S. 137 , 147 (II) (A), 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999) ); see also Dubois v. Brantley , 297 Ga. 575 , 585, 775 S.E.2d 512 (2015). [W]hen a party offers expert testimony and the opposing party raises a Daubert challenge, the trial court must make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellec

2019We are mindful that we generally presume that the trial court performed its duties, Byelick v. Michel Herbelin USA, Inc. , 275 Ga. 505 , 507 (3), 570 S.E.2d 307 (2002), but where the trial court did not rule on the pending motion to exclude, did not mention the admissibility of the expert's testimony, and explicitly stated that it was considering the motion for summary judgment, we cannot say with certainty that the trial court conducted the proper Daubert analysis.

2019We are mindful that we generally presume that the trial court performed its duties, Byelick v. Michel Herbelin USA, Inc. , 275 Ga. 505 , 507 (3), 570 S.E.2d 307 (2002), but where the trial court did not rule on the pending motion to exclude, did not mention the admissibility of the expert's testimony, and explicitly stated that it was considering the motion for summary judgment, we cannot say with certainty that the trial court conducted the proper Daubert analysis.

2016And Georgia courts are to interpret and apply OCGA § 24-7-702 by “drawing] from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., [supra]; General Electric Co. v. Joiner, 522 U. S. 136 [( 118 SCt 512 , 139 LE2d 508)] (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U. S. 137 [( 119 SCt 1167 , 143 LE2d 238)] (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.” OCGA § 24-7-702 (f) . . . .

2011This appears as a prime example of the ipse dixit of an expert as recognized by General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997). 42 Which, of course, is also the fourth, only corroborative element of the superseding Daubert test. 43 Defendant’s supplemental memorandum, page 33 et seq. 44 Wills v. Amerada Hess Corp., 379 F.3d 32 , 49 (2nd Cir. 2004). 45 McClain v. Metabolife Int’l, Inc., supra at 1240.

2014But we have already rejected that contention in CSX Transp. v. McDowell, 294 Ga. App. 871, 872-873 (1) (a) ( 670 SE2d 543 ) (2008), in which the appellant asserted that the court’s order does not include specific findings and that the record does not contain certain discussion that addresses Daubert v. Merrell Dow Pharmaceuticals so as to affirmatively show that the court carried out its role as gatekeeper.

2014But we have already rejected that contention in CSX Transp. v. McDowell, 294 Ga. App. 871, 872-873 (1) (a) ( 670 SE2d 543 ) (2008), in which the appellant asserted that the court’s order does not include specific findings and that the record does not contain certain discussion that addresses Daubert v. Merrell Dow Pharmaceuticals so as to affirmatively show that the court carried out its role as gatekeeper.

2008But see Mason, supra (interpreting statutory language of OCGA § 24-9-67.1 (f)). 6 See Byelick v. Michel Herbelin USA, 275 Ga. 505, 507 (3) ( 570 SE2d 307 ) (2002); see generally Youngblood v. State, 253 Ga. App. 327 (1) ( 558 SE2d 854 ) (2002) (appellate court presumes that the trial court performed its official duties in accordance with the law). 7 See generally Canas v. Al-Jabi, 282 Ga. App. 764, 792 (3) (a) ( 639 SE2d 494 ) (2006), rev’d on other grounds, Kaminer v. Canas, 282 Ga. 830, 838 (4) ( 653 SE2d 691 ) (2007); see further Shiver, supra at 829 (recognizing “differential diagnosis” as

2008But see Mason, supra (interpreting statutory language of OCGA § 24-9-67.1 (f)). 6 See Byelick v. Michel Herbelin USA, 275 Ga. 505, 507 (3) ( 570 SE2d 307 ) (2002); see generally Youngblood v. State, 253 Ga. App. 327 (1) ( 558 SE2d 854 ) (2002) (appellate court presumes that the trial court performed its official duties in accordance with the law). 7 See generally Canas v. Al-Jabi, 282 Ga. App. 764, 792 (3) (a) ( 639 SE2d 494 ) (2006), rev’d on other grounds, Kaminer v. Canas, 282 Ga. 830, 838 (4) ( 653 SE2d 691 ) (2007); see further Shiver, supra at 829 (recognizing “differential diagnosis” as

2026Hayes v. State, 320 Ga. 505, 516 (2024).

2026Hayes v. State, 320 Ga. 505, 516 (2024).

2025See Smith II, 315 Ga. at 300 n.6 (Under Daubert, “a trial court must evaluate the reliability of the expert’s proffered testimony; proper considerations include whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the 2 At the time of Smith’s first trial, the standard articulated in Harper v. State, 249 Ga. 519, 525 (1982), remained in force.

2025See Smith II, 315 Ga. at 300 n.6 (Under Daubert, “a trial court must evaluate the reliability of the expert’s proffered testimony; proper considerations include whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the 2 At the time of Smith’s first trial, the standard articulated in Harper v. State, 249 Ga. 519, 525 (1982), remained in force.

2025See e.g., Southern States Chemical Inc. v Tampa Tank, 316 Ga. 701 , 707–08 (2023). 23 out the standards governing the qualification of experts and the ad- missibility of expert testimony which, by that statute’s terms, are intended to implement the Daubert standard.

2025See e.g., Southern States Chemical Inc. v Tampa Tank, 316 Ga. 701 , 707–08 (2023). 23 out the standards governing the qualification of experts and the ad- missibility of expert testimony which, by that statute’s terms, are intended to implement the Daubert standard.

2025Arnold’s final contention is that the trial court improperly admitted testimony from Casey Jarvis, the State’s material analyst, 39 “in violation of the Daubert standard” and OCGA § 24-7-702 (b).26 Arnold argues that Jarvis’s testimony was “unreliable” in this case because she was “not qualified” and because she did not conduct all necessary tests, demonstrating that she “clearly did not reliably apply scientific principals [sic] and methods to the facts of this case.” OCGA § 24-7-702 was amended in 2022 “to apply in all proceedings rather than only in all civil proceedings.” Brookins v. State

2025Arnold’s final contention is that the trial court improperly admitted testimony from Casey Jarvis, the State’s material analyst, 39 “in violation of the Daubert standard” and OCGA § 24-7-702 (b).26 Arnold argues that Jarvis’s testimony was “unreliable” in this case because she was “not qualified” and because she did not conduct all necessary tests, demonstrating that she “clearly did not reliably apply scientific principals [sic] and methods to the facts of this case.” OCGA § 24-7-702 was amended in 2022 “to apply in all proceedings rather than only in all civil proceedings.” Brookins v. State

2024See Spencer v. State, 302 Ga. 133, 136 (805 SE2d 886) (2017); Duncan v. State, 305 Ga. App. 268, 270-271 (2) (699 SE2d 341) (2010); Hawkins v. State, 223 Ga. App. 34, 38 (1) (476 SE2d 803) (1996); Cherry v. State, 345 Ga. App. 409, 412 (2) (813 SE2d 408) (2018).

2024See Spencer v. State, 302 Ga. 133, 136 (805 SE2d 886) (2017); Duncan v. State, 305 Ga. App. 268, 270-271 (2) (699 SE2d 341) (2010); Hawkins v. State, 223 Ga. App. 34, 38 (1) (476 SE2d 803) (1996); Cherry v. State, 345 Ga. App. 409, 412 (2) (813 SE2d 408) (2018).

2024See Spencer v. State, 302 Ga. 133, 136 (805 SE2d 886) (2017); Duncan v. State, 305 Ga. App. 268, 270-271 (2) (699 SE2d 341) (2010); Hawkins v. State, 223 Ga. App. 34, 38 (1) (476 SE2d 803) (1996); Cherry v. State, 345 Ga. App. 409, 412 (2) (813 SE2d 408) (2018).

2024See Spencer v. State, 302 Ga. 133, 136 (805 SE2d 886) (2017); Duncan v. State, 305 Ga. App. 268, 270-271 (2) (699 SE2d 341) (2010); Hawkins v. State, 223 Ga. App. 34, 38 (1) (476 SE2d 803) (1996); Cherry v. State, 345 Ga. App. 409, 412 (2) (813 SE2d 408) (2018).

2024“The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to this verdict[,]” and in this analysis, “we review the 25 The Daubert standard directs a trial court to assess the “reliability of the expert’s proffered testimony[,]” considering “whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of exper

2024“The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to this verdict[,]” and in this analysis, “we review the 25 The Daubert standard directs a trial court to assess the “reliability of the expert’s proffered testimony[,]” considering “whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of exper

2024See Ga. L. 2022, p. 201, § 1 (amending OCGA § 24-7-702).” Smith v. State, 315 Ga. 287, 300 (2) (b) n.6 ( 882 SE2d 300 ) (2022); see also Ga. L. 2022, p. 201, § 3 (noting effective date).25 As a result, “the 25 The Daubert standard directs a trial court to assess the “reliability of the expert’s proffered testimony[,]” considering “whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the

2024See Ga. L. 2022, p. 201, § 1 (amending OCGA § 24-7-702).” Smith v. State, 315 Ga. 287, 300 (2) (b) n.6 ( 882 SE2d 300 ) (2022); see also Ga. L. 2022, p. 201, § 3 (noting effective date).25 As a result, “the 25 The Daubert standard directs a trial court to assess the “reliability of the expert’s proffered testimony[,]” considering “whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the