O.C.G.A. § 24-7-702 (2019)

Annotations

Cross references. Statute not applicable to valuation of condemned property, § 22-1-14. Competent expert testimony required in establishing payment standard or reimbursement criteria, § 51-1-52. Testimony by expert witnesses, Fed. R. Evid. 702. Editor’s notes. Ga. L. 2005, p. 1, § 1, not codified by the General Assembly, provided, with respect to former O.C.G.A. § 24-9-67.1, the predecessor of O.C.G.A. §§ 24-7-702 and 24-7703, that: “The General Assembly finds

that there presently exists a crisis affecting the provision and quality of health care services in this state. Hospitals and other health care providers in this state are having increasing difficulty in locating liability insurance and, when such hospitals and providers are able to locate such insurance, the insurance is extremely costly. The result of this crisis is the potential for a diminution of the availability of access to health care services and a resulting adverse impact on the health and well-being of the citizens of this state. The General Assembly further finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers. The General Assembly further finds that certain needed reforms affect not only health care liability claims but also other civil actions and accordingly provides such general reforms in this Act.” Ga. L. 2022, p. 201, § 3/HB 478, not codified by the General Assembly, makes this Code section applicable to any motion made or hearing or trial commenced on or after July 1, 2022. Law reviews. For annual 11th Circuit survey of evidence law, see 56 Mercer L. Rev. 1273 (2005). For article, “Georgia’s New Expert Witness Rule: Daubert and More,” see 11 Ga. St. B.J. 16 (2005). For annual survey of evidence law, see 57 Mercer L. Rev. 187 (2005). For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005). For comment, “Georgia’s Codification of

Daubert: Narrowing the Admissibility of Novel Scientific Evidence in Georgia?,” see 23 Ga. St. U.L. Rev. 481 (2006). For annual survey of evidence law, see 58 Mercer L. Rev. 151 (2006). For annual survey of product liability law, see 58 Mercer L. Rev. 313 (2006). For survey article on evidence law, see 59 Mercer L. Rev. 157 (2007). For survey article on product liability law, see 59 Mercer L. Rev. 331 (2007). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For survey article on product liability law, see 60 Mercer L. Rev. 303 (2008). For survey article on tort law, see 60 Mercer L. Rev. 375 (2008). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008). For annual survey on evidence, see 61 Mercer L. Rev. 135 (2009). For annual survey on product liability, see 61 Mercer L. Rev. 267 (2009). For annual survey on trial practice and procedure, see 61 Mercer L. Rev. 363 (2009). For annual survey of law on product liability, see 62 Mercer L. Rev. 243 (2010). For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010). For article, “Symposium on Evidence Reform: The Curious Case of Differing Literary Emphases: The Contrast Between the Use of Scientific Publications at

Pretrial Daubert Hearings and at Trial,” see 47 Ga. L. Rev. 837 (2013). For annual survey on product liability, see 65 Mercer L. Rev. 221 (2013). For annual survey on torts law, see 66 Mercer L. Rev. 189 (2014). For annual survey on trial practice and procedure, see 66 Mercer L. Rev. 211 (2014). For article, “Fisher v. Gala: O.C.G.A. § 9-11-9.1(e) Keeping Malpractice Claims Afloat,” see 66 Mercer L. Rev. 817 (2015). For annual survey of tort law, see 68 Mercer L. Rev. 279 (2016). For annual survey on product liability, see 69 Mercer L. Rev. 231 (2017). For article, “Non-Physician vs. Physician: Cross-Disciplinary Expert Testimony in Medical Negligence Litigation Who Knows the Standard of Care?,” see 35 Ga. St. U.L. Rev. 679 (2019). For annual survey on construction law, see 71 Mercer L. Rev. 57 (2019). For annual survey on product liability: a two-year survey, see 71 Mercer L. Rev. 223 (2019). For note, “Faulty Forensics: Bolstering Judicial Gatekeeping in Georgia Courts,” see 54 Ga. L. Rev. 1035 (2020). For annual survey on evidence, see 73 Mercer L. Rev. 111 (2021). For article, “HB 1405: HB 478: Amendments to Rules of Evidence Regarding Expert Testimony in Criminal Cases,” see 39 Ga. St. U.L. Rev. 93 (2022). For annual survey on criminal law, see 74 Mercer L. Rev. 93 (2022).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION BASIS FOR OPINION 1. IN GENERAL 2. NEED TO STATE BASIS HYPOTHETICAL QUESTIONS WEIGHT OF OPINION EVIDENCE CROSS-EXAMINATION ILLUSTRATIONS 1. OPINIONS ADMISSIBLE 2. OPINIONS INADMISSIBLE 3. WITNESS QUALIFIED AS EXPERT CIVIL CASES 1. IN GENERAL 2. MEDICAL EXPERTS

3. OTHER SPECIFIC EXPERTS CRIMINAL CASES 1. PROCEDURAL CONSIDERATIONS 2. QUALIFICATION AS EXPERT 3. APPOINTMENT OF EXPERT BY COURT General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3792, former Code 1873, § 3868, former Code 1882, § 3868, former Civil Code 1895, § 5287, former Penal Code 1895, § 1022, former Civil Code 1910, § 5876, former Penal Code 1910, § 1048, former Code 1933, § 38-1710, former O.C.G.A. § 24-7707, former O.C.G.A. § 24-9-67, and former O.C.G.A. § 24-9-67.1 are included in the annotations for this Code section. Constitutionality. - Statement of intent in former O.C.G.A. § 24-9-67.1(f) (see now O.C.G.A. §§ 24-7-702, 24-7-703) was not a delegation of legislative power; and, the application of the evidentiary rules established by it, did not violate the constitutional prohibition against retroactive laws. Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603, 2008 Ga. LEXIS 249 (2008) (decided under former O.C.G.A. § 24-9-67.1). Trial court erred in declaring former O.C.G.A. § 24-9-67.1(f) (see now O.C.G.A. §§ 24-7-702, 24-7-703) unconstitutional on the ground that the former statute violated the principle of separation of powers as the suggestion in the former statute that Georgia “may” consider the decisions of other courts on a subject did not invade the province of the judiciary because it was not couched in mandatory terms and merely stated a principle of law regularly employed by Georgia courts. Further, the permissive suggestion in former § 24-9-67.1(f), that the courts could consider federal interpretations of the cases on which federal rules and former § 24-9-67.1(f) were based contained no words of command and did not seek to enforce a particular construction of the former statute on the courts. Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603, 2008 Ga. LEXIS 249 (2008) (decided under former O.C.G.A. § 24-967.1).

Trial court properly found that former O.C.G.A. § 24-9-67.1(a) and (b)(1) (see now O.C.G.A. §§ 24-7-702, 24-7-703)were contradictory in that paragraph (b)(1) limited experts to relying on potentially admissible facts and data, whereas subsection (a) stated that facts and data relied upon need not be admissible. Since the two provisions could not be harmonized and, read together, they rendered the former statute unconstitutionally vague; however, the trial court was not required to strike the former statute in the statute’s entirety. Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603, 2008 Ga. LEXIS 249 (2008) (decided under former O.C.G.A. § 24-9-67.1). In a personal injury suit wherein the trial court excluded the testimony of plaintiffs’ two expert witnesses upon application of former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703), the trial court did not err in rejecting plaintiffs’ equal protection challenge since plaintiffs could not establish the necessary element of an equal protection claim that plaintiffs were situated similarly to those being treated differently. For purposes of evidentiary standards, only those accused of the same offense are similarly situated in the criminal law arena, only those asserting or defending against the same cause of action are similarly situated in the civil law arena, and the parties to civil cases were not similarly situated to those engaged in criminal prosecutions. Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603, 2008 Ga. LEXIS 249 (2008) (decided under former O.C.G.A. § 24-9-67.1). O.C.G.A. § 24-7-702(c)(2)(A), governing expert qualifications in medical malpractice cases, was not unconstitutionally vague, did not violate equal protection or separation of powers, did not make irrevocable grants of special privileges and immunities, and was not a special law; however, the trial court erred in rejecting an expert simply because the expert had not

General Consideration (Cont’d) performed the specific procedure at issue. The proper consideration was the expert’s level of knowledge. Zarate-Martinez v. Echemendia, 299 Ga. 301, 788 S.E.2d 405, 2016 Ga. LEXIS 450 (2016). Requirements of O.C.G.A. § 24-7702(c) do not apply to causation testimony. Callaway v. O’Connell, No., 44 F. Supp. 3d 1316, 2014 U.S. Dist. LEXIS 120679 (M.D. Ga. 2014). Federal interpretation on application of Daubert standard. - Citing the Eleventh Circuit opinion of McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004), and applying the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), and subsequent cases applying Daubert, the Court of Appeals held that the trial court properly applied the Daubert factors and did not abuse the court’s discretion in admitting expert testimony under former O.C.G.A. § 24-9-67.1. Cotten v. Phillips, 280 Ga. App. 280, 633 S.E.2d 655, 2006 Ga. App. LEXIS 831 (2006), cert. denied, No. S06C1966, 2007 Ga. LEXIS 112 (Ga. Jan. 8, 2007) (decided under former O.C.G.A. § 24-9-67.1). Noting that “it is proper to consider and give weight to constructions placed on the federal rules by federal courts when applying or construing a statute based on those rules”, and that since former O.C.G.A. § 24-9-67.1(b) “was based on Fed. R. Evid. Rule 702, which in its present form is based on the holdings in . . . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), and to the many cases applying Daubert, including Kumho Tire Co. v. Carmichael, 119 SC 1167 (1999)”, it was appropriate to apply the standards of Daubert in determining whether a witness is qualified to render an opinion as an expert. Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603, 2008 Ga. LEXIS 249 (2008) (decided under former O.C.G.A. § 24-967.1). Application of Daubert standard. - After a trial court found that an expert’s testimony failed the first element of Daubert because the expert’s theory was essentially untestable and had not been

tested, the trial court properly exercised the court’s discretion in weighing the fourth Daubert factor - whether the theory had attained general acceptance within the scientific community - less heavily than the other three Daubert factors. Butler v. Union Carbide Corp., 310 Ga. App. 21, 712 S.E.2d 537, 2011 Ga. App. LEXIS 495 (2011), cert. denied, No. S11C1620, 2011 Ga. LEXIS 857 (Ga. Oct. 17, 2011) (decided under former O.C.G.A. § 24-9-67.1). As the trial court’s finding that the plaintiff’s expert was a “quintessential expert for hire” was supported by the evidence, it was within the trial court’s discretion to apply the Daubert factors with greater rigor in determining the admissibility of the expert’s opinion. Butler v. Union Carbide Corp., 310 Ga. App. 21, 712 S.E.2d 537, 2011 Ga. App. LEXIS 495 (2011), cert. denied, No. S11C1620, 2011 Ga. LEXIS 857 (Ga. Oct. 17, 2011) (decided under former O.C.G.A. § 24-9-67.1). Asbestos fiber exposure testimony not allowed. - Expert medical witness could not give an opinion on the cause of death based on lab report which had not yet been admitted into evidence, but error in allowing such opinion was cured when the lab report was later introduced into evidence. Vaughn v. State, 249 Ga. 803, 294 S.E.2d 504, 1982 Ga. LEXIS 1199 (1982) (decided under former O.C.G.A. § 24-9-67). Trial court did not err in refusing to permit the testimony of two of the manufacturer’s expert witnesses in an asbestos exposure case as to the asbestos fiber counts on its packing material that had been determined by an outside laboratory, even though such opinions may be given on the facts as proved by other witnesses, because the experts were not entitled to give an opinion based upon the outside laboratory’s report which was prepared by other people and which was not in evidence. John Crane, Inc. v. Jones, 262 Ga. App. 531, 586 S.E.2d 26, 2003 Ga. App. LEXIS 852 (2003), aff’d, 278 Ga. 747, 604 S.E.2d 822, 2004 Ga. LEXIS 996 (2004) (decided under former O.C.G.A. § 24-967). Trial court’s denial of Daubert motion presumed correct. - Trial court’s evidentiary ruling, denying a property

owner’s Daubert motion to exclude a bank’s appraiser’s expert testimony pursuant to former O.C.G.A. § 24-9-67.1(b) (see now O.C.G.A. §§ 24-7-702, 24-7-703), was presumed correct since no transcript from the hearing thereon appeared in the record. Vill. at Lake Lanier, LLC v. State Bank & Trust Co., 314 Ga. App. 498, 724 S.E.2d 806, 2012 Ga. App. LEXIS 220 (2012) (decided under former O.C.G.A. § 24-9-67.1). Court determines expert’s qualifications. - Qualification of a witness as an expert is addressed to the sound discretion of the court. Clary v. State, 8 Ga. App. 92, 68 S.E. 615, 1910 Ga. App. LEXIS 45 (1910) (decided under former Penal Code 1910, § 1048); Hines v. Hendricks, 25 Ga. App. 682, 104 S.E. 520, 1920 Ga. App. LEXIS 149 (1920) (decided under former Penal Code 1910, § 1048); Western & Atl. R.R. v. Fowler, 77 Ga. App. 206, 47 S.E.2d 874, 1948 Ga. App. LEXIS 521 (1948) (decided under former Code 1933, § 38-1710); McDowell v. State, 78 Ga. App. 116, 50 S.E.2d 633, 1948 Ga. App. LEXIS 693 (1948) (decided under former Code 1933, § 38-1710); Carroll v. Hayes, 98 Ga. App. 450, 105 S.E.2d 755, 1958 Ga. App. LEXIS 607 (1958) (decided under former Code 1933, § 38-1710); Pinkerton & Laws Co. v. Robert & Co. Assocs., 129 Ga. App. 881, 201 S.E.2d 654, 1973 Ga. App. LEXIS 1182 (1973) (decided under former Code 1933, § 38-1710); Johnson v. State, 130 Ga. App. 704, 204 S.E.2d 302, 1974 Ga. App. LEXIS 1234 (1974) (decided under former Code 1933, § 38-1710); Barrow v. State, 235 Ga. 635, 221 S.E.2d 416, 1975 Ga. LEXIS 951 (1975) (decided under former Code 1933, § 38-1710); McCoy v. State, 237 Ga. 118, 227 S.E.2d 18, 1976 Ga. LEXIS 1167 (1976) (decided under former Code 1933, § 38-1710); Redd v. State, 240 Ga. 753, 243 S.E.2d 16, 1978 Ga. LEXIS 821 (1978) (decided under former Code 1933, § 38-1710); Kelly v. Floor Bazaar, Inc., 153 Ga. App. 163, 264 S.E.2d 697, 1980 Ga. App. LEXIS 1724 (1980) (decided under former Code 1933, § 381710); Wilkie v. State, 153 Ga. App. 609, 266 S.E.2d 289, 1980 Ga. App. LEXIS 1922 (1980) (decided under former Code 1933, § 38-1710); Haygood v. State, 154 Ga. App. 633, 269 S.E.2d 480, 1980 Ga.

App. LEXIS 2317 (1980) (decided under former Code 1933, § 38-1710); Rose Mill Homes, Inc. v. Michel, 155 Ga. App. 808, 273 S.E.2d 211, 1980 Ga. App. LEXIS 2800 (1980) (decided under former Code 1933, § 38-1710); Hicks v. State, 157 Ga. App. 69, 276 S.E.2d 129 (1981) (decided under former Code 1933, § 38-1710); Hicks v. State, 196 Ga. App. 311, 396 S.E.2d 60, 1990 Ga. App. LEXIS 864 (1990) (decided under former O.C.G.A. § 24-9-67). For definitions of expert, see Macon Ry. & Light Co. v. Mason, 123 Ga. 773, 51 S.E. 569, 1905 Ga. LEXIS 597 (1905) (decided under former Civil Code 1895, § 5287); see also Doster v. Brown, 25 Ga. 24, 1858 Ga. LEXIS 2 (1858); White v. Clements, 39 Ga. 232, 1869 Ga. LEXIS 207 (1869) (decided under former law); Hines v. Hendricks, 25 Ga. App. 682, 104 S.E. 520, 1920 Ga. App. LEXIS 149 (1920) (decided under former Civil Code 1910, § 5876). An expert is one who practices a business or profession requiring the person to have technical knowledge in that field. Smith v. State, 127 Ga. 56, 56 S.E. 116, 1906 Ga. LEXIS 735 (1906) (decided under former Penal Code 1895, § 1022); Glover v. State, 129 Ga. 717, 59 S.E. 816, 1907 Ga. LEXIS 564 (1907) (decided under former Penal Code 1895, § 1022). Expert testimony must relate to scientific or technical knowledge. McLain v. State, 71 Ga. 279, 1883 Ga. LEXIS 179 (1883) (decided under former Code 1882, § 3868); McClendon v. State, 7 Ga. App. 784, 68 S.E. 331, 1910 Ga. App. LEXIS 521 (1910) (decided under former Penal Code 1895, § 1022); Spence v. State, 20 Ga. App. 61, 92 S.E. 555, 1917 Ga. App. LEXIS 712 (1917). Basic requirements for expert. - Generally, nothing more is required to qualify an expert than that one has been educated in a particular trade or profession. Southern Ry. v. Cabe, 109 Ga. App. 432, 136 S.E.2d 438, 1964 Ga. App. LEXIS 888 (1964) (decided under former Code 1933, § 38-1710); Bowden v. State, 239 Ga. 821, 238 S.E.2d 905, 1977 Ga. LEXIS 1343 (1977), cert. denied, 435 U.S. 937, 98 S. Ct. 1513, 55 L. Ed. 2d 533, 1978 U.S.

General Consideration (Cont’d) LEXIS 1234 (1978) (decided under former Code 1933, § 38-1710); Brown v. State, 245 Ga. 588, 266 S.E.2d 198, 1980 Ga. LEXIS 867 (1980) (decided under former Code 1933, § 38-1710); Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275, 1981 Ga. App. LEXIS 2149 (1981) (decided under former Code 1933, § 38-1710); Morris v. State, 159 Ga. App. 600, 284 S.E.2d 103, 1981 Ga. App. LEXIS 2717 (1981) (decided under former Code 1933, § 38-1710); IntaRoto, Inc. v. Guest, 160 Ga. App. 75, 286 S.E.2d 61, 1981 Ga. App. LEXIS 2887 (1981) (decided under former Code 1933, § 38-1710). An expert witness need only be competent as an expert in the witness’s own field, and the witness need not have legal expertise. Watkins v. State, 259 Ga. 648, 386 S.E.2d 132, 1989 Ga. LEXIS 525 (1989) (decided under former O.C.G.A. § 24-9-67). Formal training is not a prerequisite for expert status. Brown v. State, 245 Ga. 588, 266 S.E.2d 198, 1980 Ga. LEXIS 867 (1980) (decided under former Code 1933, § 38-1710). Special knowledge necessary to be an expert may be derived from experience as well as study. Southern Ry. v. Cabe, 109 Ga. App. 432, 136 S.E.2d 438, 1964 Ga. App. LEXIS 888 (1964) (decided under former Code 1933, § 38-1710); Martin v. Newton, 129 Ga. App. 735, 201 S.E.2d 31, 1973 Ga. App. LEXIS 1130 (1973) (decided under former Code 1933, § 38-1710); Bowden v. State, 239 Ga. 821, 238 S.E.2d 905, 1977 Ga. LEXIS 1343 (1977), cert. denied, 435 U.S. 937, 98 S. Ct. 1513, 55 L. Ed. 2d 533, 1978 U.S. LEXIS 1234 (1978) (decided under former Code 1933, § 38-1710); Brown v. State, 245 Ga. 588, 266 S.E.2d 198, 1980 Ga. LEXIS 867 (1980) (decided under former Code 1933, § 38-1710); Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275, 1981 Ga. App. LEXIS 2149 (1981) (decided under former Code 1933, § 38-1710); Morris v. State, 159 Ga. App. 600, 284 S.E.2d 103, 1981 Ga. App. LEXIS 2717 (1981) (decided under former Code 1933, § 38-1710); IntaRoto, Inc. v. Guest, 160 Ga. App. 75, 286 S.E.2d 61, 1981 Ga. App. LEXIS 2887

(1981) (decided under former Code 1933, § 38-1710). Failure to object constitutes waiver. - In rate increase request hearings, when the power company failed to object to an expert witness’s qualifications either before or during the witness’s testimony, any objection it might have had was waived. Georgia Power Co. v. Georgia Pub. Serv. Comm’n, 196 Ga. App. 572, 396 S.E.2d 562, 1990 Ga. App. LEXIS 960 (1990), cert. denied, No. S90C1546, 1990 Ga. LEXIS 483 (Ga. Oct. 23, 1990) (decided under former O.C.G.A. § 24-9-67). Expert can express an opinion on a matter which lies within the domain of the profession or calling which the witness pursues. Martin v. Newton, 129 Ga. App. 735, 201 S.E.2d 31, 1973 Ga. App. LEXIS 1130 (1973) (decided under former Code 1933, § 38-1710). Application of knowledge to specific problem not necessary. - When one has been formally educated in a particular trade or profession, additional experience by application of that knowledge to a specific problem is not necessary in order to sustain one as an expert. IntaRoto, Inc. v. Guest, 160 Ga. App. 75, 286 S.E.2d 61, 1981 Ga. App. LEXIS 2887 (1981) (decided under former Code 1933, § 38-1710). Standard for admissibility of expert testimony was governed by former O.C.G.A. § 24-9-67.1(b) (see now O.C.G.A. § 24-7-702), which provided if scientific, technical, or other specialized knowledge would assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert may testify thereto in the form of an opinion or otherwise, if: (1) the testimony was based upon sufficient facts or data which were or will be admitted into evidence at the hearing or trial; (2) the testimony was the product of reliable principles and methods; and (3) the witness had applied the principles and methods reliably to the facts of the case. Levine v. SunTrust Robinson Humphrey, 321 Ga. App. 268, 740 S.E.2d 672, 2013 Ga. App. LEXIS 344 (2013), cert. denied, No. S13C1255, 2013 Ga. LEXIS 774 (Ga. Sept. 23, 2013) (decided under former O.C.G.A. § 24-9-67.1). Qualification as an expert not satisfied. - Trial court did not err in refusing

to qualify the employees’ witness as an expert because the witness’s testimony provided no evidence, let alone expert testimony, that would preclude summary judgment in favor of the Georgia Department of Human Services, and under former O.C.G.A. § 24-9-67.1(d) (see now O.C.G.A. §§ 24-7-702, 24-7-703), the trial court had discretion in determining whether expert testimony was necessary; any use of the witness as an expert in the case was wholly unnecessary because the areas of the expert’s specialized knowledge were not issues beyond the ken of lay persons. Forrester v. Ga. Dep’t of Human Servs., 308 Ga. App. 716, 708 S.E.2d 660, 2011 Ga. App. LEXIS 270 (2011), cert. denied, No. S11C1146, 2011 Ga. LEXIS 622 (Ga. Sept. 6, 2011) (decided under former O.C.G.A. § 24-9-67.1). Plaintiff’s witness was not qualified to testify as an expert in a medical malpractice claim based on injuries and the death of an elderly patient because the witness was completely lacking in recent experience working with the type of patient at issue in the case since the witness never worked in a mental health unit or at any type of extended-stay facility housing elderly patients, and over the prior nine years, the witness had worked in neonatal or pediatric facilities, except for one year when the witness was working in intensive care units. Sanders v. United States, No. CV 109-164, 2011 U.S. Dist. LEXIS 155970 (S.D. Ga. Aug. 26, 2011). In a deceased patient’s family’s action against a hospital arising out of an alleged failure to properly treat decubitus ulcers (pressure sores), the expert affidavit failed to comply with O.C.G.A. §§ 9-11-9.1(a) and 24-7-702(c)(2); the expert was a coroner with a specialty in forensic pathology and not engaged in the treatment of decubitus ulcers. Hendrix v. Fulton DeKalb Hosp. Auth., 330 Ga. App. 833, 769 S.E.2d 575, 2015 Ga. App. LEXIS 69 (2015). After the pre-trial detainee died in an isolation cell, and the plaintiffs filed a civil action alleging that the medical defendants committed malpractice, because the trial court did not abuse the court’s discretion in finding that the affidavit of the plaintiffs’ expert witness was insufficient to satisfy the statutory qualifications for

an expert witness, the plaintiffs failed to meet the threshold requirement of filing an affidavit of an expert competent to testify and their medical malpractice claims failed as a matter of law; thus, the trial court properly granted summary judgment in favor of the medical defendants. McKuhen v. TransformHealthRX, Inc., 338 Ga. App. 354, 790 S.E.2d 122, 2016 Ga. App. LEXIS 458 (2016), cert. denied, No. S17C0102, 2017 Ga. LEXIS 278 (Ga. Apr. 17, 2017), cert. denied, No. S17C0103, 2017 Ga. LEXIS 264 (Ga. Apr. 17, 2017). Plaintiffs’ expert witness was not sufficiently qualified to render an expert opinion in support of their medical malpractice claims because, in contradiction to the expert’s affidavits, the expert admitted in the expert’s deposition that during the five years prior to the pre-trial detainee’s death, the expert did not teach anyone how to monitor or treat inmates going through alcohol withdrawal; that, in Massachusetts, the expert did not provide daily or even regular patient care, and the expert could not estimate the amount of time the expert spent actually caring for patients; and that, in Nevada, the expert admitted the expert did not directly supervise any nurse in a correctional healthcare setting. McKuhen v. TransformHealthRX, Inc., 338 Ga. App. 354, 790 S.E.2d 122, 2016 Ga. App. LEXIS 458 (2016), cert. denied, No. S17C0102, 2017 Ga. LEXIS 278 (Ga. Apr. 17, 2017), cert. denied, No. S17C0103, 2017 Ga. LEXIS 264 (Ga. Apr. 17, 2017). Appellate court vacated the trial court’s orders admitting the worker’s other expert’s testimony as the trial court did not evaluate that expert’s qualifications to give certain opinions, including whether the power company was legally responsible to the worker or failed to warn. Ga. Power Co. v. Campbell, 360 Ga. App. 422, 861 S.E.2d 255, 2021 Ga. App. LEXIS 369 (2021). Applicability of former law. - Because former O.C.G.A. § 24-9-67.1(a) (see now O.C.G.A. §§ 24-7-702, 24-7-703), which governed expert witness testimony in civil actions, did not apply to probation revocation hearings, the trial court’s ruling to permit the expert’s testimony re-

General Consideration (Cont’d) garding the presence of marijuana in a joint seized from the probationer was not erroneous as the state was not required to comply with Daubert to prove the expert’s qualifications. Carlson v. State, 280 Ga. App. 595, 634 S.E.2d 410, 2006 Ga. App. LEXIS 682 (2006), cert. denied, No. S06C2099, 2007 Ga. LEXIS 215 (Ga. Feb. 26, 2007) (decided under former O.C.G.A. § 24-9-67.1). Former O.C.G.A. § 24-9-67.1(c) (see now O.C.G.A. §§ 24-7-702, 24-7-703) was a procedural, not substantive statute because the former statute did not change the standard of care to be applied in a medical malpractice action or the measure of a plaintiff’s recovery; thus, the requirements of the statute were properly applied retroactively in a medical malpractice action in which a patient suffered injuries prior to the effective date of the former statute but filed suit after former § 24-967.1(c) became effective. Nathans v. Diamond, 282 Ga. 804, 654 S.E.2d 121, 2007 Ga. LEXIS 857 (2007) (decided under former O.C.G.A. § 24-9-67.1). Construction with other law. - Upon a proper appeal from a final order, while neither former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703) nor O.C.G.A. § 9-11-16 required that a complaint be dismissed or stricken for failing to comply with the terms of those statutes, unlike the Anti-SLAPP statute, codified at O.C.G.A. § 9-11-11.1, because the trial court did not enter a final judgment within the meaning of O.C.G.A. § 911-68(b)(1), attorney fees were properly denied; moreover, as to the claim that dismissing and refiling in another court constituted “improper judge shopping,” obtaining a different judge was simply the result of the action, not necessarily the reason for doing so. McKesson Corp. v. Green, 286 Ga. App. 110, 648 S.E.2d 457, 2007 Ga. App. LEXIS 712 (2007), cert. denied, No. S07C1602, 2007 Ga. LEXIS 656 (Ga. Sept. 10, 2007) (decided under former O.C.G.A. § 24-9-67.1). Federal interpretation on practice area of defendant and expert’s qualifications related thereto. - Following the federal practice on the issue of admis-

sibility of expert testimony under Fed. R. Evid. 702 as developed in Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579, 113 S. Ct. 2786, 125 L.E.2d 469 (1993), and its progeny, the Court of Appeals concluded that the language “area of practice or specialty in which the opinion is to be given” in former O.C.G.A. § 24-967.1(c)(2), is dictated not by the apparent expertise of the treating physician, but rather by the allegations of the complaint concerning the plaintiff’s injury; the statute contemplates that “the expert may very well have a different area of practice than the defendant doctor”, and it is thus the expert’s qualifications, and not the defendant doctor’s area of practice, that control the admissibility of the expert’s testimony. Abramson v. Williams, 281 Ga. App. 617, 636 S.E.2d 765, 2006 Ga. App. LEXIS 1183 (2006), cert. denied, No. S07C0226, 2007 Ga. LEXIS 91 (Ga. Jan. 8, 2007) (decided under former O.C.G.A. § 24-9-67.1). Dispute on credentials goes to weight and credibility. - Trial court’s evidentiary ruling, denying a property owner’s Daubert motion for a hearing to determine the competence of a bank’s appraiser pursuant to former O.C.G.A. § 249-67.1(b) (see now O.C.G.A. §§ 24-7-702, 24-7-703), was not an abuse of discretion because disputes as to the expert’s credientials went to the weight and credibility of the testimony, but not to the admissibility. Vill. at Lake Lanier, LLC v. State Bank & Trust Co., 314 Ga. App. 498, 724 S.E.2d 806, 2012 Ga. App. LEXIS 220 (2012) (decided under former O.C.G.A. § 24-9-67.1). Federal interpretation on party bearing burden of establishing reliability of expert’s opinion. - The Georgia Court of Appeals held that the trial court properly utilized federal authority, including Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), as permitted by former O.C.G.A. § 24-9-67.1(f), when determining whether an expert’s testimony met the requirements of former § 24-9-67.1(b); such authority imbues trial courts with “substantial discretion in deciding how to test an expert’s reliability.” Citing Mason v. Home Depot U.S.A., Inc., 283 Ga. 271 (Ga. 2008),

and McClain v. Metabolife Intl., 401 F.3d 1233 (11th Cir. 2005), the court noted that former O.C.G.A. § 24-9-67.1(b) is based upon Rule 702 of the Federal Rules of Evidence, which places the burden of establishing the reliability of the expert’s opinion on the proponent. Butler v. Union Carbide Corp., 310 Ga. App. 21, 712 S.E.2d 537, 2011 Ga. App. LEXIS 495 (2011), cert. denied, No. S11C1620, 2011 Ga. LEXIS 857 (Ga. Oct. 17, 2011) (decided under former O.C.G.A. § 24-9-67.1). Use of deposition at trial subject to expert rules. - In a medical malpractice case, the patient’s survivor could not use the deposition of a surgery center’s representative taken under O.C.G.A. § 9-1130(b)(6) to establish the doctor’s standard of care without regard to O.C.G.A. § 247-702, governing the admissibility of expert testimony; O.C.G.A. § 9-11-32(a) allowed the use of such depositions for any purpose but required application of the rules of evidence. Yugueros v. Robles, 300 Ga. 58, 793 S.E.2d 42, 2016 Ga. LEXIS 709 (2016). Trial court should rule on admissibility before ruling on summary judgment. - Because the opinions of a homeowner’s experts, if admissible, would present a jury question on the issue of an exterminator’s breach of contract and the extent of the homeowner’s damages, a trial court erred in failing to decide the admissibility of these opinions under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703) before granting summary judgment to the exterminator. An v. Active Pest Control South, Inc., 313 Ga. App. 110, 720 S.E.2d 222, 2011 Ga. App. LEXIS 1014 (2011) (decided under former O.C.G.A. § 24-9-67.1). Summary judgment entered in favor of a sanitation company was vacated as to a citizen’s claim that the company negligently damaged a platform, created a tripping hazard, and caused the citizen’s injuries because the trial court had to rule on the admissibility of the citizen’s expert witness before the court of appeals could consider whether the company bent the landing and caused a tripping hazard; the company moved to exclude the expert’s testimony under former O.C.G.A. § 24-967.1, but the trial court never ruled on

admissibility. Burroughs v. Mitchell County, 313 Ga. App. 8, 720 S.E.2d 335, 2011 Ga. App. LEXIS 1073 (2011) (decided under former O.C.G.A. § 24-9-67.1). Status of witness as lay or expert goes not to admissibility, but credibility. McLelland v. State, 203 Ga. App. 93, 416 S.E.2d 340, 1992 Ga. App. LEXIS 397 (1992), cert. denied, No. S92C0727, 1992 Ga. LEXIS 376 (Ga. Apr. 30, 1992) (decided under former O.C.G.A. § 24-9-67). Expert witness defined. - An expert witness is one who through education, training, or experience has peculiar knowledge concerning some matter of science or skill to which the expert’s testimony relates. Tifton Brick & Block Co. v. Meadow, 92 Ga. App. 328, 88 S.E.2d 569, 1955 Ga. App. LEXIS 586 (1955) (decided under former Code 1933, § 38-1710). Construction. - As the undisputed evidence showed that the mitochondrial DNA (mtDNA) analysis was based on sound scientific theory and produced reliable results when proper procedures were followed, and the “direct sequencing” method employed in the prosecution of the defendant for murder was the only technique accepted and used by those who conducted forensic mtDNA testing, as the technique produced reliable results upon which any practitioner could draw conclusions, the trial court did not err in allowing that evidence. Further, former O.C.G.A. § 24-9-67, and neither Daubert nor former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702 and 24-7-703) controlled the admission of evidence in criminal proceedings. Vaughn v. State, 282 Ga. 99, 646 S.E.2d 212, 2007 Ga. LEXIS 419 (2007) (decided under former O.C.G.A. § 24-9-67). Applicable only in criminal cases. - Trial court was not required to consider a driver’s expert affidavits under former O.C.G.A. § 24-9-67 in a products liability action because by the former statute’s terms, the former statute applied to criminal cases, not civil cases. Udoinyion v. Michelin N. Am., Inc., 313 Ga. App. 248, 721 S.E.2d 190, 2011 Ga. App. LEXIS 1092 (2011), cert. dismissed, No. S12C1769, 2012 Ga. LEXIS 869 (Ga. Nov. 5, 2012) (decided under former O.C.G.A. § 24-9-67).

General Consideration (Cont’d) Qualifications of expert witness are addressed to sound discretion of court. Atlantic Coast Line R.R. v. Sweat, 183 F.2d 27, 1950 U.S. App. LEXIS 2905 (5th Cir. 1950) (decided under former Code 1933, § 38-1710). Expert opinion must be helpful or necessary. - Expert opinion, like lay opinion, is received only in instances when the opinion is helpful or necessary. Jones v. State, 232 Ga. 762, 208 S.E.2d 850, 1974 Ga. LEXIS 1083 (1974), overruled in part, Johnson v. State, 272 Ga. 254, 526 S.E.2d 549, 2000 Ga. LEXIS 122 (2000) (decided under former Code 1933, § 38-1710). Expert opinion is admissible on any matter of scientific or technical knowledge. Southern Ry. v. Wessinger, 32 Ga. App. 551, 124 S.E. 100, 1924 Ga. App. LEXIS 548 (1924) (decided under former Civil Code 1910, § 5876). When based on facts supported by other witnesses and weight thereof is jury question. - Expert witnesses’ opinions, on questions of science, skill, trade, or like questions, shall always be admissible provided the opinions are based on facts supported by other witnesses and the weight thereof is a question for the jury, to deal with as the jury sees fit, giving credence to the opinion or not. Atlantic Coast Line R.R. v. Sweat, 183 F.2d 27, 1950 U.S. App. LEXIS 2905 (5th Cir. 1950) (decided under former Code 1933, § 38-1710). When an expert testified that the expert’s opinion was based upon the plaintiff’s deposition testimony, the investigating officer’s report, diagrams of the accident scene drafted by the plaintiff, photographs of the plaintiff’s vehicle, and information regarding the speed of the plaintiff’s truck from its governor, it was a jury question as to the weight which should be assigned the opinion, and not a question of admissibility. J.B. Hunt Transp., Inc. v. Brown, 236 Ga. App. 634, 512 S.E.2d 34, 1999 Ga. App. LEXIS 134 (1999), cert. denied, No. S99C0857, 1999 Ga. LEXIS 566 (Ga. May 28, 1999), overruled in part, Rockdale Hospital, LLC v. Evans, 306 Ga. 847, 834 S.E.2d 77, 2019

Ga. LEXIS 642 (2019) (decided under former O.C.G.A. § 24-9-67). Expert’s credibility is a jury question. - Defendant’s argument that the evidence was insufficient to support the defendant’s conviction for possession by ingestion of methamphetamine because the testimony of the defendant’s expert witness, a forensic toxicologist with a private clinical reference laboratory, called into question the validity of the state crime lab report, was rejected because the determination of the credibility of defendant’s expert and the effect of the expert’s testimony on the validity of the state crime lab report were for the jury. Poston v. State, 274 Ga. App. 117, 617 S.E.2d 150, 2005 Ga. App. LEXIS 679 (2005) (decided under former O.C.G.A. § 24-9-67). Opinion proper when on matter within scope of expertise. - Expert can express an opinion on a matter when the matter inquired about lies within the domain of the profession or calling which the expert pursues. Southern Ry. v. Cabe, 109 Ga. App. 432, 136 S.E.2d 438, 1964 Ga. App. LEXIS 888 (1964) (decided under former Code 1933, § 38-1710). Opinions on matters outside scope of expertise. - Opinion of any witness, not on any question of science, skill, trade, or like questions is inadmissible when all the facts are capable of being clearly detailed so that the jury may form correct conclusions therefrom. Whatley v. Henry, 65 Ga. App. 668, 16 S.E.2d 214, 1941 Ga. App. LEXIS 367 (1941) (decided under former Code 1933, § 38-1710). While expert witnesses may give their opinions as to facts, principles, and rules involved in the science in which the witnesses are learned, the witnesses are not, as to questions lying out of the domain of the science, art, or trade in which the witnesses are experts, exempt from the restriction of the former statute, which required witnesses to state facts and not opinions. Southern Ry. v. Cabe, 109 Ga. App. 432, 136 S.E.2d 438, 1964 Ga. App. LEXIS 888 (1964) (decided under former Code 1933, § 38-1710). Establishing variance from standard of care in legal malpractice cases. - Plaintiff may not establish variance from standard of care in medical or

legal malpractice cases without expert opinion testimony from which the jury could determine malpractice. This latter requirement is properly a prerequisite for the submission of a case to the jury. Savannah Valley Prod. Credit Ass’n v. Cheek, 248 Ga. 745, 285 S.E.2d 689, 1982 Ga. LEXIS 650 (1982) (decided under former O.C.G.A. § 24-9-67). Matter within scope of lay knowledge or experience. - Expert testimony is usually excluded when the question is whether the subject matter is within the scope of the ordinary layman’s knowledge and experience. Jones v. State, 232 Ga. 762, 208 S.E.2d 850, 1974 Ga. LEXIS 1083 (1974), overruled in part, Johnson v. State, 272 Ga. 254, 526 S.E.2d 549, 2000 Ga. LEXIS 122 (2000) (decided under former Code 1933, § 38-1710). Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible when the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; that is, the conclusion is beyond the ken of the average layman. Smith v. State, 247 Ga. 612, 277 S.E.2d 678, 1981 Ga. LEXIS 781 (1981), superseded by statute as stated in Gibbs v. State, 340 Ga. App. 723, 798 S.E.2d 308, 2017 Ga. App. LEXIS 126 (2017) (decided under former Code 1933, § 38-1710). Expert may not testify as to the expert’s opinion as to the existence vel non of a fact (in this case, whether a child had been abused sexually) unless the inference to be drawn from facts in evidence is beyond the ken of the jurors - that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing - from facts in evidence - such an inference for themselves. Allison v. State, 256 Ga. 851, 353 S.E.2d 805, 1987 Ga. LEXIS 663 (1987) (decided under former O.C.G.A. § 24-9-67). Advocate for the victims of sexual assault at a rape crisis center did not testify as to a rape trauma syndrome; rather, the advocate properly testified that there was no typical or common behavior among rape victims and that alleged victims of sexual assault might delay reporting such crimes. Stevenson v. State, 272 Ga. App. 335, 612 S.E.2d 521, 2005 Ga. App. LEXIS

(2005), cert. dismissed, No. S05C1805, 2005 Ga. LEXIS 758 (Ga. Oct. 24, 2005) (decided under former O.C.G.A. § 24-9-67). Whether a seat belt engaged properly or an air bag deployed are not matters of science and issues requiring the expert testimony of an engineer or a metallurgist, but are matters of skill and experience. Owens v. GMC, 272 Ga. App. 842, 613 S.E.2d 651, 2005 Ga. App. LEXIS 267 (2005) (decided under former O.C.G.A. § 24-9-67). Whether someone suffers greater injuries in a car wreck when a seat belt does not work to restrain the person and the air bag does not inflate between the person and the steering wheel, windshield, and mirror are not matters of science and issues requiring the expert testimony of trauma physician or engineer, but are matters of skill and experience. Owens v. GMC, 272 Ga. App. 842, 613 S.E.2d 651, 2005 Ga. App. LEXIS 267 (2005) (decided under former O.C.G.A. § 24-9-67). Mixture of law and fact. - It is only when the drawing of the inference requires a mixture of law and fact that the question is not a proper one for opinion evidence. Gage v. Tiffin Motor Homes, Inc., 153 Ga. App. 704, 266 S.E.2d 345, 1980 Ga. App. LEXIS 1951 (1980) (decided under former Code 1933, § 38-1710); Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349, 1980 Ga. App. LEXIS 2506 (1980) (decided under former Code 1933, § 38-1710). Opinion of ultimate fact. - Expert opinions are advisory and are not binding upon a fact-finding tribunal when such opinions are as broad in scope as the question of fact at issue, such as the cause of death or disability. American Mut. Liab. Ins. Co. v. King, 88 Ga. App. 176, 76 S.E.2d 81, 1953 Ga. App. LEXIS 1035 (1953) (decided under former Code 1933, § 38-1710). As a general rule, an expert witness is not allowed to express on the stand an opinion of ultimate fact or the very fact to be decided by the jury because to do so would invade the province of the jury. Jones v. State, 232 Ga. 762, 208 S.E.2d 850, 1974 Ga. LEXIS 1083 (1974), overruled in part, Johnson v. State, 272 Ga.

General Consideration (Cont’d) 254, 526 S.E.2d 549, 2000 Ga. LEXIS 122 (2000) (decided under former Code 1933, § 38-1710); Mitchell v. State, 154 Ga. App. 399, 268 S.E.2d 360, 1980 Ga. App. LEXIS 2193, cert. denied, 449 U.S. 1011, 101 S. Ct. 567, 66 L. Ed. 2d 469, 1980 U.S. LEXIS 4104 (1980) (decided under former Code 1933, § 38-1710). An expert witness may testify as to the witness’s opinion on the ultimate issue in the case without invading the province of the jury so long as the subject is an appropriate one for opinion evidence. King v. Browning, 246 Ga. 46, 268 S.E.2d 653, 1980 Ga. LEXIS 1011 (1980) (decided under former Code 1933, § 38-1710); Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349, 1980 Ga. App. LEXIS 2506 (1980) (decided under former Code 1933, § 38-1710). If witness is asked witness’s opinion as to a fact and not as to a mixed question of law and fact, the witness should be allowed to testify even though the witness’s opinion is as to the ultimate issue for the jury. Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349, 1980 Ga. App. LEXIS 2506 (1980) (decided under former Code 1933, § 38-1710). If the cause and manner of an injury is the ultimate issue of fact to be determined by the jury, an expert may nevertheless give the expert’s factual opinion but not the expert’s legal conclusion on this issue for the benefit of the jury in their fact finding. Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349, 1980 Ga. App. LEXIS 2506 (1980) (decided under former Code 1933, § 38-1710). Expert may state the expert’s opinion upon an ultimate fact, provided that all other requirements for admission of expert opinion were met. Baker v. State, 161 Ga. App. 670, 288 S.E.2d 280, 1982 Ga. App. LEXIS 1977 (1982) (decided under former O.C.G.A. § 24-9-67). Legal conclusions. - Expert cannot act as a member of the jury; nor, while on the stand, can the expert transcend the functions of a witness and, under the guise of giving testimony, state a legal conclusion. Travelers Ins. Co. v. Thornton, 119 Ga. 455, 46 S.E. 678, 1904 Ga. LEXIS

232 (1904) (decided under former Civil Code 1895, § 5287); Herndon v. State, 178 Ga. 832, 174 S.E. 597, 1934 Ga. LEXIS 197 (1934) (decided under former Code 1933, § 38-1710); Gage v. Tiffin Motor Homes, Inc., 153 Ga. App. 704, 266 S.E.2d 345, 1980 Ga. App. LEXIS 1951 (1980) (decided under former Code 1933, § 381710); Mitchell v. State, 154 Ga. App. 399, 268 S.E.2d 360, 1980 Ga. App. LEXIS 2193, cert. denied, 449 U.S. 1011, 101 S. Ct. 567, 66 L. Ed. 2d 469, 1980 U.S. LEXIS 4104 (1980) (decided under former Code 1933, § 38-1710). Whether a question calls for a legal conclusion or principally a fact which incidentally involves a legal word or phrase is within the sound discretion of the trial court. Gage v. Tiffin Motor Homes, Inc., 153 Ga. App. 704, 266 S.E.2d 345, 1980 Ga. App. LEXIS 1951 (1980) (decided under former Code 1933, § 38-1710). Although it is permissible for the expert to give the expert’s opinion to facts in issue or even the ultimate issue where such question is a proper one for opinion evidence, the expert is not permitted to state a legal conclusion as to the ultimate matter in issue. Nichols v. State, 177 Ga. App. 689, 340 S.E.2d 654, 1986 Ga. App. LEXIS 2452 (1986) (decided under former O.C.G.A. § 24-9-67). Testimony on calculation of damages. - When plaintiffs presented expert testimony on the calculation of damages, even though the trier of fact found that the defendant was not responsible for all the damages, the plaintiff showed with reasonable certainty the total amount of damages and the degree to which those damages were attributable to defendant, and the award was affirmed. Metropolitan Atlanta Rapid Transit Authority v. Green Int’l, Inc., 235 Ga. App. 419, 509 S.E.2d 674 (decided under former O.C.G.A. § 249-67). Opinions of an expert alone are insufficient grounds on which to grant summary judgment. Lake v. Hamilton Bank, 137 Ga. App. 600, 224 S.E.2d 522, 1976 Ga. App. LEXIS 2544 (1976) (decided under former Code 1933, § 38-1710). Experiments. - Expert testimony can be based on experiments if the expert gives details of the experiment. Frank v.

State, 141 Ga. 243, 80 S.E. 1016, 1914 Ga. LEXIS 183 (1914) (decided under former Penal Code 1910, § 1048). Construction with § 24-9-65. - Former Code 1933, § 38-1710 dealt with expert testimony concerning science, skill, trade, or like questions, in which matters experts may give their opinion based on facts as proved by other witnesses, but former Code 1933, § 38-1708 (see now O.C.G.A. § 24-7-701) dealt with opinions of lay witnesses. Mills v. State, 71 Ga. App. 353, 30 S.E.2d 824, 1944 Ga. App. LEXIS 366 (1944) (decided under former Code 1933, § 38-1710). Appellate standard for admission. - When testimony of an expert accident reconstructionist was admitted by the trial court as expert opinion, the Court of Appeals erred by judging its admissibility pursuant to the standard appropriate for lay witnesses. Johnson v. Knebel, 267 Ga. 853, 485 S.E.2d 451 (decided under former O.C.G.A. § 24-9-67). Appellate court is not bound by Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 LE2d 469 (1993) and has consistently refused to apply the Daubert standard; further, as Daubert involves the application of Fed. R. Evid. 702, which has not been adopted in Georgia, Daubert has not been adopted in Georgia either. Dailey v. State, 271 Ga. App. 492, 610 S.E.2d 126, 2005 Ga. App. LEXIS 83 (2005) (decided under former O.C.G.A. § 24-9-67). Past use of expert by other party. - Plaintiff’s questions regarding the prior employment of plaintiff’s expert by defense counsel, asked in an attempt to rehabilitate or bolster the expert’s credibility, were not admissible. Vaughn v. Protective Ins. Co., 243 Ga. App. 79, 532 S.E.2d 159, 2000 Ga. App. LEXIS 409 (2000), cert. denied, No. S00C1249, 2000 Ga. LEXIS 587 (Ga. July 14, 2000) (decided under former O.C.G.A. § 24-9-67). Exclusion of expert witness testimony on cross-racial eyewitness identification not reversible error. - Trial court did not abuse the court’s discretion or violate the defendant’s Sixth and Fourteenth Amendment rights by excluding expert testimony about cross-racial eyewitness identification; based on

eyewitness testimony and the defendant’s confession, the jury could have resolved the issue of whether the victims recognized the defendant without the assistance of an expert witness. Crawford v. State, 283 Ga. App. 645, 642 S.E.2d 335, 2007 Ga. App. LEXIS 148 (2007), cert. denied, No. S07C0937, 2007 Ga. LEXIS 442 (Ga. June 4, 2007) (decided under former O.C.G.A. § 24-9-67). Limiting questioning of expert. - Trial court did not err in limiting appellate counsel’s questioning of an expert witness at the hearing on the defendant’s motion for new trial because there was sufficient evidence before the trial court to show what the expert’s testimony would have been had defense counsel called the expert as a witness; appellate counsel called the witness and questioned the witness about the techniques used to question young children and the reliability of a young child’s testimony, and the trial court decided to limit the testimony only when appellate counsel began asking specific questions about one of the interviews. Vaughn v. State, 307 Ga. App. 754, 706 S.E.2d 137, 2011 Ga. App. LEXIS 70 (2011) (decided under former O.C.G.A. § 24-9-67). Subject matter improper for expert testimony. - As the undisputed evidence showed that the mitochondrial DNA (mtDNA) analysis was based on sound scientific theory and produced reliable results when proper procedures were followed, and the “direct sequencing” method employed in the prosecution of the defendant for murder was the only technique accepted and used by those who conducted forensic mtDNA testing, as the technique produced reliable results upon which any practitioner could draw conclusions, the trial court did not err in allowing that evidence. Vaughn v. State, 282 Ga. 99, 646 S.E.2d 212, 2007 Ga. LEXIS 419 (2007) (decided under former O.C.G.A. § 24-967). Expert on DNA testing. - No error resulted by admitting expert testimony on the issue of DNA testing and because the defendant did not contend that the expert’s testimony failed to meet the Harper standard, no basis for reversal on this ground existed. Carruth v. State, 286 Ga.

General Consideration (Cont’d) App. 431, 649 S.E.2d 557, 2007 Ga. App. LEXIS 800 (2007) (decided under former O.C.G.A. § 24-9-67). Expert testimony on absence of DNA. - Trial counsel was not ineffective in failing to object to the testimony of an expert witness that the absence of the defendant’s DNA on a ski mask recovered from the scene of the crime did not rule out the possibility that the defendant wore the mask because the witness’s testimony was admissible as the opinions of experts on any question of science, skill, trade, or like questions was always admissible; and counsel extensively cross-examined the witness on the witness’s conclusions, eliciting an admission from the witness that no studies supported the witness’s testimony, reiterating the absence of DNA evidence implicating the defendant, and introducing into evidence the expert’s report containing that finding. Mitchell v. State, 303 Ga. 491, 813 S.E.2d 367, 2018 Ga. LEXIS 204 (2018) (decided under former O.C.G.A. § 24-967). No error in excluding experts’ affidavits. - Trial court did not err by denying a defendant’s request to admit testimony regarding the contents of affidavits used, in part, by the defendant’s expert witnesses as the basis for the experts’ opinions regarding the defendant’s mental status as, in applying former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7702, 24-7-703), the trial court first found that the facts contained in the disputed affidavits were otherwise inadmissible hearsay, as the affidavits rested on the veracity and competency of persons not in court and did not come within any statutorily-recognized hearsay exception. The trial court then balanced the probative value of the affidavits against the prejudicial effect, noting that the affidavits were originally submitted in the defendant’s habeas proceeding, contained identical language thereby casting suspicion on the affidavits’ trustworthiness, contained conclusory statements and irrelevant and prejudicial information related to the defendant’s alleged alcohol and drug use and the crime of murder for which the defen-

dant was convicted; and, therefore, the affidavits had little probative information and were cumulative of other evidence. Rogers v. State, 282 Ga. 659, 653 S.E.2d 31, 2007 Ga. LEXIS 838 (2007), cert. denied, 552 U.S. 1311, 128 S. Ct. 1882, 170 L. Ed. 2d 747, 2008 U.S. LEXIS 3194 (2008), overruled in part, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020) (decided under former O.C.G.A. § 24-9-67.1). Basis for Opinion 1. In General Facts that can form basis for opinion. - Expert opinions can be based upon facts which the expert has testified to, or heard others testify to, or which have been hypothetically stated to the expert. Choice v. State, 31 Ga. 424, 1860 Ga. LEXIS 355 (1860) (decided under former law); Taylor v. State, 83 Ga. 647, 10 S.E. 442, 1889 Ga. LEXIS 129 (1889) (decided under former Code 1882, § 3868). An expert witness may give an opinion based upon the witness’s own examination of a person, upon the witness’s observation of that person, or upon any state of facts, supported by some evidence in the case, which the witness assumes as true. Mutual Benefit Health & Accident Ass’n v. Hickman, 100 Ga. App. 348, 111 S.E.2d 380, 1959 Ga. App. LEXIS 1014 (1959) (decided under former Code 1933, § 381710). Opinion of an expert on any question relating to the expert’s profession, trade, or business is always admissible, when given in response to a hypothetical question based upon the testimony of witnesses other than the expert, or if the expert has personally observed the facts, and gives the expert’s opinion based upon the expert’s own observation. Bullington v. Chandler, 110 Ga. App. 803, 140 S.E.2d 59, 1964 Ga. App. LEXIS 765 (1964) (decided under former Code 1933, § 381710). An expert may give an opinion based on facts which the expert personally observes, and when an expert personally observes data collected by another, the expert’s opinion is not objectionable merely because it is based, in part, on the

other’s findings. Millar Elevator Serv. Co. v. O’Shields, 222 Ga. App. 456, 475 S.E.2d 188 (decided under former O.C.G.A. § 249-67). Expert witness’s opinion predicated on facts raised by others. - An expert witness’s opinion may be predicated upon facts placed in evidence by the testimony of other witnesses or by any other legal means. Mutual Benefit Health & Accident Ass’n v. Hickman, 100 Ga. App. 348, 111 S.E.2d 380, 1959 Ga. App. LEXIS 1014 (1959) (decided under former Code 1933, § 38-1710); National Trailer Convoy, Inc. v. Sutton, 136 Ga. App. 760, 222 S.E.2d 98, 1975 Ga. App. LEXIS 1482 (1975) (decided under former Code 1933, § 38-1710). When an expert did not present sufficient evidence to show a relevant point, given lack of support for the expert’s opinion, the lower court did not abuse the court’s discretion in excluding the expert’s testimony. Cromer v. Mulkey Enters., 254 Ga. App. 388, 562 S.E.2d 783, 2002 Ga. App. LEXIS 388 (2002) (decided under former O.C.G.A. § 24-9-67). Opinions must be based on established facts. - Expert opinions are admissible if based upon a state of facts which the evidence on behalf of either party tends to establish; but the jury should know upon what facts the opinion is founded, for its pertinence depends upon whether the jury finds the facts on which the opinion rests. Moore v. State, 221 Ga. 636, 146 S.E.2d 895, 1966 Ga. LEXIS 658 (1966) (decided under former Code 1933, § 38-1710). Matter not in evidence. - An expert witness was properly precluded from expressing an opinion based on a letter containing an inadmissible summary of matter not in evidence and not within the expert’s own knowledge. Loper v. Drury, 211 Ga. App. 478, 440 S.E.2d 32, 1993 Ga. App. LEXIS 1568 (1993), cert. denied, No. S94C0519, 1994 Ga. LEXIS 524 (Ga. Feb. 21, 1994) (decided under former O.C.G.A. § 24-9-67). Witness’s opinion must be witness’s own; the witness cannot act as a mere conduit for the opinion of others. Thus, the opinion is incompetent if the witness has no general knowledge of the witness’s

own. Central of Ga. Ry. v. Brower, 106 Ga. App. 340, 127 S.E.2d 33, 1962 Ga. App. LEXIS 704, rev’d in part, 218 Ga. 525, 128 S.E.2d 926, 1962 Ga. LEXIS 552 (1962) (decided under former Code 1933, § 381710); Stephen W. Brown Radiology Assocs. v. Gowers, 157 Ga. App. 770, 278 S.E.2d 653, 1981 Ga. App. LEXIS 2011 (1981) (decided under former Code 1933, § 38-1710). Personal observation of fact by expert. - Opinion of experts, on matters within their area of expertise, is admissible especially when the expert has personally observed the facts and gives the expert’s opinion based upon the expert’s own observations. Erwin v. Gold Kist, Inc., 146 Ga. App. 372, 246 S.E.2d 404, 1978 Ga. App. LEXIS 2359 (1978) (decided under former Code 1933, § 38-1710). Expert testimony as to illegal drug distribution trade is admissible. - Trial court did not err by allowing a district attorney’s investigator to give the investigator’s “guess” that a document found in appellant’s possession and introduced in evidence “was ‘the way people who are involved in the distribution of drugs keep records of who owes them money,’ ” because the testimony of the investigator involved a question of “trade,” particularly concerning the procedure used in the illegal drug distribution trade in keeping records of accounts due and owing. O’Donnell v. State, 200 Ga. App. 829, 409 S.E.2d 579, 1991 Ga. App. LEXIS 1154 (1991), cert. denied, No. S91C1573, 1991 Ga. LEXIS 612 (Ga. Sept. 6, 1991) (decided under former O.C.G.A. § 24-9-67). Expert testimony by an undercover officer about how street drug dealers operated in three person units consisting of a seller, drug handler, and money handler, and why they did so, was admissible as not “beyond the ken” of the average juror and applicable to the facts of the case. Vaughan v. State, 251 Ga. App. 221, 553 S.E.2d 335, 2001 Ga. App. LEXIS 897 (2001) (decided under former O.C.G.A. § 24-9-67). With respect to a particular scientific procedure or technique, the trial court makes a determination whether the procedure or technique in question has

In General (Cont’d) reached a scientific stage of verifiable certainty, based upon evidence, expert testimony, treatises, or the rationale of cases in other jurisdictions. Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 452 S.E.2d 159, 1994 Ga. App. LEXIS 1336 (1994), cert. denied, No. S95C0554, 1995 Ga. LEXIS 435 (Ga. Mar. 10, 1995), overruled in part, Chrysler Group, LLC v. Walden, 303 Ga. 358, 812 S.E.2d 244, 2018 Ga. LEXIS 154 (2018) (decided under former O.C.G.A. § 24-9-67). Expert need not have gone to scene. - When an expert bases the expert’s opinion on facts within the bounds of evidence, the testimony is admissible notwithstanding the fact that the expert never went to the scene at all and based the expert’s opinion on an examination of photographs. Jones v. Ray, 159 Ga. App. 734, 285 S.E.2d 42, 1981 Ga. App. LEXIS 2734 (1981) (decided under former Code 1933, § 38-1710). Opinion based on findings of another. - When an expert personally observes data collected by another, the expert’s opinion is not objectionable merely because it is based, in part, upon the other’s findings. Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391, 1979 Ga. App. LEXIS 2578 (1979) (decided under former Code 1933, § 38-1710). Condemnor’s expert properly testified as to the necessity of a transmission line even though the condemnor’s opinion was based, in part, on another’s findings; further, the expert conducted the condemnor’s own study after the case was initially remanded and testified on remand that the transmission line was needed by 2007 to provide safe and reliable electric service to customers in North Georgia. Mosteller Mill, Ltd. v. Ga. Power Co., 271 Ga. App. 287, 609 S.E.2d 211, 2005 Ga. App. LEXIS 25 (2005) (decided under former O.C.G.A. § 24-9-67). Expert opinion may not be given on another’s opinion. - Expert may give an opinion upon the facts testified to by other witnesses, but not upon their opinions. Walker v. Fields, 28 Ga. 237, 1859 Ga. LEXIS 185 (1859) (decided under former law); Taylor v. Warren, 175 Ga. 800,

166 S.E. 225, 1932 Ga. LEXIS 337 (1932) (decided under former Civil Code 1910, § 5876); McCauley v. Boston Old Colony Ins. Co., 149 Ga. App. 706, 256 S.E.2d 19, 1979 Ga. App. LEXIS 1998 (1979) (decided under former Code 1933, § 38-1710). Expert opinion cannot be based on out-of-court representations by another. Flanagan v. State, 106 Ga. 102, 106 Ga. 109, 32 S.E. 80, 1898 Ga. LEXIS 29 (1898) (decided under former Penal Code 1895, § 1022). Opinion based on hearsay. - When an expert witness’s opinion is based on hearsay it is not error for the court to allow an expert to relate facts of which the expert has no direct personal knowledge, especially if the court gives the proper limiting instruction. White v. Georgia Power Co., 237 Ga. 341, 227 S.E.2d 385, 1976 Ga. LEXIS 1481 (1976), overruled in part, DeKalb County v. Trustees, Decatur Lodge No. 1602, etc., 242 Ga. 707, 251 S.E.2d 243, 1978 Ga. LEXIS 1337 (1978) (decided under former Code 1933, § 381710). It is axiomatic that an expert, in utilizing the expert’s expertise, may base the expert’s opinion as to value upon hearsay. Hoover & Morris Dev. Co. v. FDIC, 149 Ga. App. 855, 256 S.E.2d 140, 1979 Ga. App. LEXIS 2056 (1979) (decided under former Code 1933, § 38-1710). When an expert’s testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion. King v. Browning, 246 Ga. 46, 268 S.E.2d 653, 1980 Ga. LEXIS 1011 (1980) (decided under former Code 1933, § 38-1710); Cheek v. Wainwright, 246 Ga. 171, 269 S.E.2d 443, 1980 Ga. LEXIS 1032 (1980) (decided under former Code 1933, § 381710); Jones v. Ray, 159 Ga. App. 734, 285 S.E.2d 42, 1981 Ga. App. LEXIS 2734 (1981) (decided under former Code 1933, § 38-1710). An expert’s opinion may be based in part upon hearsay, and when it is based thereon it goes to the weight and credibility of the testimony, not its admissibility. Avant Trucking Co. v. Stallion, 159 Ga. App. 198, 283 S.E.2d 7, 1981 Ga. App.

LEXIS 2547 (1981) (decided under former Code 1933, § 38-1710). Provided an expert witness is properly qualified in the field in which the expert 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. Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 452 S.E.2d 159, 1994 Ga. App. LEXIS 1336 (1994), cert. denied, No. S95C0554, 1995 Ga. LEXIS 435 (Ga. Mar. 10, 1995), overruled in part, Chrysler Group, LLC v. Walden, 303 Ga. 358, 812 S.E.2d 244, 2018 Ga. LEXIS 154 (2018) (decided under former O.C.G.A. § 24-9-67). In an action against a utility and power company for damages arising from electromagnetic radiation, the trial court committed reversible error in admitting testimony of experts regarding a perceived consensus of opinion in the scientific community that magnetic fields from power lines are not a cause of cancer. Jordan v. Georgia Power Co., 219 Ga. App. 690, 466 S.E.2d 601 (decided under former O.C.G.A. § 24-9-67). Forensic pediatrician who examined a battered infant was properly allowed to testify about seizures noted in the baby’s medical records, and about a radiologist’s report that confirmed suspicions about the extent of an injury, because the pediatrician’s opinion was not based solely on those records, but also on an examination of the baby. Nichols v. State, 278 Ga. App. 46, 628 S.E.2d 131, 2006 Ga. App. LEXIS 253 (2006), cert. denied, No. S06C1239, 2006 Ga. LEXIS 752 (Ga. Sept. 18, 2006) (decided under former O.C.G.A. § 24-967). Investigating police officer basing opinion on hearsay statements. - Police officer who investigates an accident cannot base the officer’s opinion as to manner in which accident occurred upon hearsay statements which the officer receives during the officer’s investigation unless they are a part of the res gestae. Avant Trucking Co. v. Stallion, 159 Ga. App. 198, 283 S.E.2d 7, 1981 Ga. App.

LEXIS 2547 (1981) (decided under former Code 1933, § 38-1710). Book learning. - Expert testimony was admissible even though based on book learning rather than knowledge gained from actual experience. Boswell v. State, 114 Ga. 40, 39 S.E. 897, 1901 Ga. LEXIS 558 (1901) (decided under former Penal Code 1895, § 1022); Miller v. Travelers Ins. Co., 111 Ga. App. 245, 141 S.E.2d 223, 1965 Ga. App. LEXIS 935 (1965) (decided under former Code 1933, § 38-1710). Opinion based on education and experience was not speculative. - Testimony of a firearms expert, that the expert would not expect to find gunshot residue from the murder weapon, a semiautomatic pistol, was not speculative, was grounded on the expert’s education and experience, and was admissible under former O.C.G.A. § 24-9-67. Tavera v. State, 279 Ga. 803, 621 S.E.2d 422, 2005 Ga. LEXIS 725 (2005) (decided under former O.C.G.A. § 24-9-67). Restatement of textbook opinion inadmissible. - While an expert witness may support the expert’s opinion by reference to books, statistical sources, and other learned sources, the witness’s testimony is inadmissible when it is merely a restatement of a textbook opinion rather than an independent expression of the witness’s own expert opinion. DOT v. Brand, 149 Ga. App. 547, 254 S.E.2d 873, 1979 Ga. App. LEXIS 1926 (1979) (decided under former O.C.G.A. § 24-9-67). Medical records. - Opinion testimony based merely upon records and case history furnished the witness by other doctors and not a part of the evidence in the case was objectionable, but the error in the admission of the doctor’s opinion was harmless, since during the four-day trial of the case, an enormous amount of testimony was adduced concerning the recent medical history of the decedent, the testimony included findings of diagnostic tests made during the decedent’s final days, a pathologic opinion as to the cause of death could not have been made without reference to the decedent’s records, and other opinion evidence based upon the records was admitted in evidence

In General (Cont’d) without objection. Andrews v. Major, 180 Ga. App. 393, 349 S.E.2d 225, 1986 Ga. App. LEXIS 2149 (1986) (decided under former O.C.G.A. § 24-9-67). Specific article in medical journal. - It was not necessary for a doctor to have qualified as authoritative the specific article referred to in a medical journal in defense of a medical malpractice case, since the doctor did not limit the doctor’s assessment of the journal’s authority to the selective scope of the article. Pound v. Medney, 176 Ga. App. 756, 337 S.E.2d 772, 1985 Ga. App. LEXIS 2416 (1985) (decided under former O.C.G.A. § 24-967). Jury instructions. - Charge to the jury, that opinions of experts to be of any value, must be based upon facts believed, or proven to be true, was not an improper charge, nor did it have the effect of expressing an opinion on the evidence or tending to discredit the testimony of the expert witnesses in the case. Allen v. Allen, 71 Ga. App. 272, 30 S.E.2d 665, 1944 Ga. App. LEXIS 331 (1944) (decided under former Code 1933, § 38-1710). 2. Need to State Basis Expert and nonexpert compared. - Expert may give the expert’s opinion without stating the reasons therefor, but one who was not an expert may give an opinion only when accompanied with the reasons. Wallace v. State, 204 Ga. 676, 51 S.E.2d 395, 1949 Ga. LEXIS 323 (1949) (decided under former Code 1933, § 381710). Explanation unnecessary. - Opinion testimony by witnesses who qualified as expert real estate appraisers, as to the value of the condemnees’ land and as to the damages which the witnesses had suffered on account of the taking, is admissible without the necessity for the witnesses to state the facts upon which the witnesses based their opinions. Housing Auth. v. Millwood, 138 Ga. App. 610, 226 S.E.2d 766, 1976 Ga. App. LEXIS 2252 (1976) (decided under former Code 1933, § 38-1710). An expert may give the expert’s opinion without stating the foundation therefor

and without a hypothetical question based upon other evidence if the expert’s opinion is based upon facts which the expert knows and has observed, or based upon facts in the record at the time the expert states the expert’s opinion, or based partly on first-hand knowledge and partly on the facts or record. Thrift-Mart, Inc. v. Commercial Union Assurance Cos., 154 Ga. App. 344, 268 S.E.2d 397, 1980 Ga. App. LEXIS 2158 (1980) (decided under former Code 1933, § 38-1710). Explanation permitted. - While it is not necessary that an expert witness state the facts upon which the expert bases the expert’s opinion, it is error to refuse to permit the expert to do so for the purpose of showing the basis of the opinion. It matters not whether the facts are sought from the witness while on direct or on cross-examination. State Hwy. Dep’t v. Howard, 119 Ga. App. 298, 167 S.E.2d 177, 1969 Ga. App. LEXIS 1079 (1969) (decided under former Code 1933, § 381710); Martin v. State, 151 Ga. App. 9, 258 S.E.2d 711, 1979 Ga. App. LEXIS 2413, cert. dismissed, 244 Ga. 876, 263 S.E.2d 437, 1979 Ga. LEXIS 1448 (1979) (decided under former Code 1933, § 38-1710). Explanation necessary. - When an expert testifies to a conclusion based on information furnished by others, then all the information utilized by that expert in forming an opinion should be presented to the jury to enable the jury to evaluate the expert’s testimony. Stewart v. State, 246 Ga. 70, 268 S.E.2d 906, 1980 Ga. LEXIS 970 (1980) (decided under former Code 1933, § 38-1710). Error to refuse to permit witness to state basis. - While it is not necessary that an expert witness state the facts upon which the expert bases the expert’s opinion, it is error to refuse to permit the expert to do so for the purpose of showing the basis of the opinion. Jordan v. Department of Transp., 178 Ga. App. 133, 342 S.E.2d 482, 1986 Ga. App. LEXIS 1620 (1986) (decided under former O.C.G.A. § 24-9-67). Basis for opinion outside scope of expertise. - An opinion of a witness is inadmissible when the information upon which the opinion is based is not given. This is true, even though the witness is an

expert on some subject, when the opinion testimony related to a subject on which the witness is not qualified as an expert. Central of Ga. Ry. v. Brower, 106 Ga. App. 340, 127 S.E.2d 33, 1962 Ga. App. LEXIS 704, rev’d in part, 218 Ga. 525, 128 S.E.2d 926, 1962 Ga. LEXIS 552 (1962) (decided under former Code 1933, § 38-1710). Explanation enhances weight of opinion. - When the facts upon which an expert bases the expert’s opinion are stated the opinion is entitled to greater weight. State Hwy. Dep’t v. Howard, 119 Ga. App. 298, 167 S.E.2d 177, 1969 Ga. App. LEXIS 1079 (1969) (decided under former Code 1933, § 38-1710). Hypothetical Questions Admissibility of opinion. - Opinion of an expert on any question relating to the expert’s profession, trade, or business is always admissible, when given in response to a hypothetical question based upon the testimony of witnesses other than the expert, or where the expert has personally observed the facts and given the expert’s opinion based on the expert’s own opinion. Yates v. State, 127 Ga. 813, 56 S.E. 1017, 1907 Ga. LEXIS 483 (1907) (decided under former Civil Code 1895, § 5287); Cranshaw v. Schweizer Mfg. Co., 1 Ga. App. 363, 58 S.E. 222, 1907 Ga. App. LEXIS 245 (1907) (decided under former Civil Code 1895, § 5287); Fincher v. Davis, 27 Ga. App. 494, 108 S.E. 905, 1921 Ga. App. LEXIS 230 (1921) (decided under former Civil Code 1910, § 5876); Taylor v. Warren, 175 Ga. 800, 166 S.E. 225, 1932 Ga. LEXIS 337 (1932) (decided under former Civil Code 1910, § 5876); Wallace v. State, 204 Ga. 676, 51 S.E.2d 395, 1949 Ga. LEXIS 323 (1949) (decided under former Code 1933, § 38-1710). Trial court did not err by allowing an expert to respond to the state’s hypothetical question during redirect examination because the hypothetical was supported by the evidence; the expert was asked to consider a scenario based on the defendant’s version of the facts and photographs of a crib in order to determine whether the victim’s injury was consistent with the defendant’s story. Elrod v. State, 316 Ga. App. 491, 729 S.E.2d 593, 2012 Ga. App. LEXIS 593 (2012) (decided under former O.C.G.A. § 24-9-67).

It is not necessary that question be propounded hypothetically when an expert testifies to the expert’s opinion based upon facts which the expert has observed. Jones v. Ray, 159 Ga. App. 734, 285 S.E.2d 42, 1981 Ga. App. LEXIS 2734 (1981) (decided under former Code 1933, § 38-1710). When hypothetical question is appropriate. - Proper mode of examining a physician or expert, when the physician or expert is not testifying from one’s own knowledge, is to ask the physician or expert hypothetical questions. Kimball v. State, 63 Ga. App. 183, 10 S.E.2d 240, 1940 Ga. App. LEXIS 29 (1940) (decided under former Code 1933, § 38-1710). When an expert is asked to give an opinion on facts not coming within the expert’s own knowledge, the question should be hypothetical. Evans v. DeKalb County Hosp. Auth., 154 Ga. App. 17, 267 S.E.2d 319, 1980 Ga. App. LEXIS 2031 (1980) (decided under former Code 1933, § 38-1710). Factual basis for hypothetical question. - When the testimony is based upon a hypothetical question, the facts assumed to be true should be such as the evidence on behalf of either party tends to establish. Flanagan v. State, 106 Ga. 102, 106 Ga. 109, 32 S.E. 80, 1898 Ga. LEXIS 29 (1898) (decided under former Civil Code 1895, § 5287); Yarbrough v. Yarbrough, 202 Ga. 391, 43 S.E.2d 329, 1947 Ga. LEXIS 449 (1947) (decided under former Code 1933, § 38-1710); Ellis v. Southern Ry., 89 Ga. App. 407, 79 S.E.2d 541, 1953 Ga. App. LEXIS 977 (1953) (decided under former Code 1933, § 38-1710); Garrett v. State, 153 Ga. App. 366, 265 S.E.2d 304, 1980 Ga. App. LEXIS 1811 (1980) (decided under former Code 1933, § 381710). Opinion of an expert witness may be given in response to a hypothetical question based upon facts placed in evidence by the testimony of other witnesses or by competent evidence of any nature. Altamaha Convalescent Ctr., Inc. v. Godwin, 137 Ga. App. 394, 224 S.E.2d 76, 1976 Ga. App. LEXIS 2460 (1976) (decided under former Code 1933, § 38-1710); DuBois v. Ray, 177 Ga. App. 349, 339 S.E.2d 605, 1985 Ga. App. LEXIS 2600 (1985) (decided

Hypothetical Questions (Cont’d) under former O.C.G.A. § 24-9-67); Horton v. Eaton, 215 Ga. App. 803, 452 S.E.2d 541, 1994 Ga. App. LEXIS 1385 (1994), cert. denied, No. S95C0626, 1995 Ga. LEXIS 547 (Ga. Apr. 6, 1995), overruled in part, Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147, 2009 Ga. LEXIS 395 (2009) (decided under former O.C.G.A. § 24-967); Rowe v. State, 266 Ga. 136, 464 S.E.2d 811, 1996 Ga. LEXIS 7 (1996) (decided under former O.C.G.A. § 24-9-67). When reliance is made upon circumstantial evidence alone for proof of one of the essential facts assumed in the framing of a hypothetical question, the trier of fact may consider the answer to the question only if it has first determined that the assumed fact has been satisfactorily established. Bowers v. State, 153 Ga. App. 894, 267 S.E.2d 309, 1980 Ga. App. LEXIS 2024 (1980) (decided under former Code 1933, § 38-1710). Reliance can be made upon circumstantial evidence to establish a basis for framing a hypothetical question; the question of whether the circumstances were sufficiently proven to establish the fact contained in the hypothetical question is an issue for the trier of fact. Stoneridge Properties, Inc. v. Kuper, 178 Ga. App. 409, 343 S.E.2d 424, 1986 Ga. App. LEXIS 1663 (1986) (decided under former O.C.G.A. § 24-9-67). That the testimony was circumstantial would not affect the viability of a hypothetical. Whether there was insufficient knowledge upon which the expert could render the expert’s opinion goes not to the admissibility of that opinion, but to the credibility of the witness. Apac-Georgia, Inc. v. Padgett, 193 Ga. App. 706, 388 S.E.2d 900, 1989 Ga. App. LEXIS 1638 (1989) (decided under former O.C.G.A. § 24-9-67). Method of asking question. - Attorney would be limited in framing the hypothetical question to the expert witness by the same parameters which would limit own testimony. Altamaha Convalescent Ctr., Inc. v. Godwin, 137 Ga. App. 394, 224 S.E.2d 76, 1976 Ga. App. LEXIS 2460

(1976) (decided under former Code 1933, § 38-1710). Weight of testimony in response to hypothetical question. - Opinion testimony of an expert can be based upon hypothetical questions and though the jury is allowed to receive the testimony of experts the jury is not bound by such testimony; such testimony is not conclusive or controlling and is submitted for whatever the jury considers it to be worth. Woods v. Andersen, 145 Ga. App. 492, 243 S.E.2d 748, 1978 Ga. App. LEXIS 2021 (1978) (decided under former Code 1933, § 38-1710). Weight of Opinion Evidence Expert testimony is weighed and judged like any other; its weight and value is determined by the jury considering its nature and the layman’s knowledge thereof. Buckhanon v. State, 151 Ga. 827, 108 S.E. 209, 1921 Ga. LEXIS 393 (1921) (decided under former Penal Code 1910, § 1048); see also Mitchell v. State, 6 Ga. App. 554, 65 S.E. 326, 1909 Ga. App. LEXIS 381 (1909). Trier of fact not bound by expert testimony. - While competent expert testimony is entitled to great weight, the testimony is not so authoritative that either court, jury, or commission is bound to be governed by that testimony, since the testimony is advisory merely and intended to assist the court, jury, or commission in coming to a correct conclusion. B.F. Goodrich Co. v. Arnold, 88 Ga. App. 64, 76 S.E.2d 20, 1953 Ga. App. LEXIS 1009 (1953) (decided under former Code 1933, § 38-1710); see also Thomas v. United States Cas. Co., 218 Ga. 493, 128 S.E.2d 749, 1962 Ga. LEXIS 543 (1962) (decided under former Code 1933, § 38-1710); Miller v. Travelers Ins. Co., 111 Ga. App. 245, 141 S.E.2d 223, 1965 Ga. App. LEXIS 935 (1965) (decided under former Code 1933, § 38-1710); Hughes v. Newell, 152 Ga. App. 618, 263 S.E.2d 505, 1979 Ga. App. LEXIS 3065 (1979) (decided under former Code 1933, § 38-1710); Moses v. State, 245 Ga. 180, 263 S.E.2d 916, 1980 Ga. LEXIS 732 (1980), cert. denied, 449 U.S. 849, 101 S. Ct. 138, 66 L. Ed. 2d 60,

1980 U.S. LEXIS 2962 (1980), overruled in part, Nagel v. State, 262 Ga. 888, 427 S.E.2d 490, 1993 Ga. LEXIS 326 (1993) (decided under former Code 1933, § 381710). While direct and positive testimony cannot arbitrarily be rejected by a jury or other trier of facts, this rule does not apply to the opinion evidence of physicians or other experts. Accordingly, it was a question for the board’s determination as to whether the board would accept the testimony of one physician, which authorized the award for the claimant, or the testimony of two other doctors, which would have authorized an award denying compensation. United States Fid. & Guar. Co. v. Doyle, 96 Ga. App. 745, 101 S.E.2d 600, 1957 Ga. App. LEXIS 682 (1957) (decided under former Code 1933, § 38-1710). Expert testimony is not absolutely obligatory on the jury, even if uncontradicted. Smith v. Godfrey, 155 Ga. App. 113, 270 S.E.2d 322, 1980 Ga. App. LEXIS 2481 (1980) (decided under former Code 1933, § 38-1710). Probative value of opinion evidence is for the jury. Western Union Tel. Co. v. Ford, 8 Ga. App. 514, 70 S.E. 65, 1911 Ga. App. LEXIS 13 (1911) (decided under former Civil Code 1910, § 5876); McDowell v. State, 78 Ga. App. 116, 50 S.E.2d 633, 1948 Ga. App. LEXIS 693 (1948) (decided under former Code 1933, § 38-1710); Ford Motor Co. v. Hanley, 128 Ga. App. 311, 196 S.E.2d 454, 1973 Ga. App. LEXIS 1468 (1973) (decided under former Code 1933, § 38-1710); Arnold v. State, 155 Ga. App. 569, 271 S.E.2d 702, 1980 Ga. App. LEXIS 2678 (1980) (decided under former Code 1933, § 38-1710). Weight given to discredited tests in expert community. - Trial court did not err in admitting the expert testimony of the psychologist who interviewed the children even though defendant presented expert testimony that one of the tests used by the psychologist had been discredited in the psychological community; the conflicting expert opinions on test results went to the weight, rather than the admissibility, of the testimony. Hanson v. State, 263 Ga. App. 45, 587 S.E.2d 200, 2003 Ga. App. LEXIS 1088 (2003) (decided under former O.C.G.A. § 24-9-67). Quality of expert opinion must be considered. - An expert opinion while

very valuable in many situations, nevertheless has a limited weight-carrying capacity. The “quality” of such testimony must be considered. Lashley v. Ford Motor Co., 359 F. Supp. 363, 1972 U.S. Dist. LEXIS 12178 (M.D. Ga. 1972), aff’d, 480 F.2d 158, 1973 U.S. App. LEXIS 9695 (5th Cir. 1973) (decided under former Code 1933, § 38-1710). Jury can consider expert’s credentials in assessing weight. - Whether an examining physician is or is not a psychiatrist is a matter which may affect the extent of the physician’s expertise in evaluating a mental condition, and therefore may affect the weight of any opinion or evaluation, a matter to be determined by a jury, but it does not affect admissibility, nor is admissibility precluded by the fact that the physician’s opinions and evaluations are based on conversations with the patient. Petty v. Folsom, 229 Ga. 477, 192 S.E.2d 246, 1972 Ga. LEXIS 657 (1972) (decided under former Code 1933, § 38-1710). Jury can consider the expert’s credentials and then give such weight and credit to the expert’s testimony as jury sees fit. McCoy v. State, 237 Ga. 118, 227 S.E.2d 18, 1976 Ga. LEXIS 1167 (1976) (decided under former Code 1933, § 38-1710). Positive factual testimony outweighs negative opinion. - Affirmative and positive testimony of witnesses as to the actual facts of a particular occurrence is not overcome by testimony which is negative in its character or consists of mere opinions. West v. State, 84 Ga. 527, 10 S.E. 731, 1889 Ga. LEXIS 368 (1889) (decided under former Code 1882, § 3868). An expert’s opinion based on insufficient factual foundation or hearsay affects the weight, but not the admissibility, of the expert’s testimony. Woods v. Andersen, 145 Ga. App. 492, 243 S.E.2d 748, 1978 Ga. App. LEXIS 2021 (1978) (decided under former Code 1933, § 381710). When it is developed by examination that the opinion is based on inadequate knowledge, this goes to the credibility of the witness rather than to the admissibility of the evidence. Jones v. Ray, 159 Ga. App. 734, 285 S.E.2d 42, 1981 Ga. App.

Weight of Opinion Evidence (Cont’d)

Cross-Examination

LEXIS 2734 (1981) (decided under former Code 1933, § 38-1710). Jury instructions. - Even if the testimony of the civil engineer as to the distance between named points, introduced by the defendant in support of an alibi sought to be established by the defendant, could be considered as expert evidence, the omission to charge the law in regard to expert testimony as set forth in the former statute, declaring that “the opinions of experts, on any question of science, skill, trade, or like questions, shall always be admissible; and such opinions may be given on the facts as proved by other witnesses,” was not, as contended, an expression of opinion as to credibility of the witness and weight of the testimony; nor was it erroneous to omit to charge on that subject without request. Stone v. State, 180 Ga. 223, 178 S.E. 435, 1935 Ga. LEXIS 225 (1935) (decided under former Code 1933, § 38-1710). Charge that opinion evidence could be accepted by the jury and considered along with all the other evidence in the case, but that the jury was not bound by the opinions of experts or nonexperts was not error. Allen v. Allen, 71 Ga. App. 272, 30 S.E.2d 665, 1944 Ga. App. LEXIS 331 (1944) (decided under former Code 1933, § 38-1710). Jury charge upheld. - There was no reversible error, despite the defendant’s argument on appeal that the trial court’s charge to the jury on DNA evidence was incomplete and prejudicial as a matter of law because: (1) a review of the record showed that the charge given by the court tracked the language set forth in the pattern charge and was otherwise a correct statement of law with respect to the collection and testing of DNA; and (2) the defendant’s proposed jury charge was argumentative and composed primarily of evidentiary matters that were not proper for a jury instruction. Moreover, there was no request for the additional charge the defendant asserted was erroneously omitted present in the record. Stanley v. State, 289 Ga. App. 373, 657 S.E.2d 305, 2008 Ga. App. LEXIS 93 (2008) (decided under former O.C.G.A. § 24-9-67).

Matters admissible on cross examination. - Matters the expert may have omitted from consideration in the expert’s appraisal of property were appropriate matters for cross-examination and rebuttal, and ultimately for the weight to be given the opinion by the jury. Brookhaven Supply Co. v. DeKalb County, 134 Ga. App. 878, 216 S.E.2d 694, 1975 Ga. App. LEXIS 2205 (1975) (decided under former Code 1933, § 38-1710). Reasoning the expert used in reaching expert’s opinion may be explored on crossexamination and need not be presented in toto as a condition precedent to admissibility. Woods v. Andersen, 145 Ga. App. 492, 243 S.E.2d 748, 1978 Ga. App. LEXIS 2021 (1978) (decided under former Code 1933, § 38-1710). Introducing inadmissible evidence by cross-examination. - Party should not be allowed to introduce in evidence an opinion of an expert witness based on hearsay by the method of cross-examining such witness when such evidence would have been entirely inadmissible on direct examination. Moore v. State, 221 Ga. 636, 146 S.E.2d 895, 1966 Ga. LEXIS 658 (1966) (decided under former Code 1933, § 38-1710). Volunteered testimony. - Testimony of an expert witness is not reversible error if the expert volunteered testimony during cross-examination which was substantially the same or similar to that later objected to. DOT v. Coley, 184 Ga. App. 206, 360 S.E.2d 924, 1987 Ga. App. LEXIS 2171 (1987) (decided under former O.C.G.A. § 24-9-67). Illustrations 1. Opinions Admissible Experts were permitted to testify in the following cases. - See Hook v. Stovall, Dunn & Co., 26 Ga. 704, 1859 Ga. LEXIS 407 (1859) (physician on disease) (decided under former law); Walker v. Fields, 28 Ga. 237, 1859 Ga. LEXIS 185 (1859) (willwright) (decided under former law); May v. Dorsett, 30 Ga. 116, 1860 Ga. LEXIS 48 (1860) (banking expert) (decided under former law); White v. Clements, 39 Ga. 232, 1869 Ga. LEXIS 207

(1869) (physician on disease; ethnologist on question of race) (decided under former Code 1863, § 3792); Everett v. State, 62 Ga. 65, 1878 Ga. LEXIS 300 (1878) (physician) (decided under former Code 1873, § 3868); Taylor v. State, 83 Ga. 647, 10 S.E. 442, 1889 Ga. LEXIS 129 (1889) (physician on sanity) (decided under former Code 1882, § 3868); Von Pollnitz v. State, 92 Ga. 16, 18 S.E. 301, 1893 Ga. LEXIS 5 (1893) (physician) (decided under former Code 1882, § 3868); Perry v. State, 110 Ga. 234, 36 S.E. 781, 1900 Ga. LEXIS 348 (1900) (physician) (decided under former Penal Code 1895, § 1022); Wheeler v. State, 112 Ga. 43, 37 S.E. 126, 1900 Ga. LEXIS 23 (1900) (acoustics expert on whether conversation could be overheard) (decided under former Penal Code 1895, § 1022); Travelers Ins. Co. v. Thornton, 119 Ga. 455, 46 S.E. 678, 1904 Ga. LEXIS 232 (1904) (physician on death but not on contributing cause) (decided under former Civil Code 1895, § 5287); Macon Ry. & Light Co. v. Mason, 123 Ga. 773, 51 S.E. 569, 1905 Ga. LEXIS 597 (1905) (osteopath notwithstanding lack of physician’s license) (decided under former Civil Code 1895, § 5287); Bullard v. State, 127 Ga. 289, 56 S.E. 429, 1907 Ga. LEXIS 233 (1907) (physician) (decided under former Penal Code 1895, § 1022); Goodwyn v. Central of Ga. Ry., 2 Ga. App. 470, 58 S.E. 688, 1907 Ga. App. LEXIS 426 (1907) (railroad engineer) (decided under former Civil Code 1895, § 5287); Glover v. State, 129 Ga. 717, 59 S.E. 816, 1907 Ga. LEXIS 564 (1907) (physician on sanity) (decided under former Penal Code 1895, § 1022); Harper v. State, 129 Ga. 770, 59 S.E. 792, 1907 Ga. LEXIS 579 (1907) (physician) (decided under former Penal Code 1895, § 1022); Piedmont Cotton Mills v. Georgia Ry. & Elec. Co., 131 Ga. 129, 62 S.E. 52, 1908 Ga. LEXIS 36 (1908) (expert on location of railroad and factory) (decided under former Civil Code 1895, § 5287); Cochrell v. Langley Mfg. Co., 5 Ga. App. 317, 63 S.E. 244, 1908 Ga. App. LEXIS 111 (1908) (experts on machinery) (decided under former Civil Code 1895, § 5287); Garner v. State, 6 Ga. App. 788, 65 S.E. 842, 1909 Ga. App. LEXIS 470 (1909) (gun expert on caliber of bullet) (decided under former Penal Code 1895, § 1022); West-

ern Union Tel. Co. v. Ford, 8 Ga. App. 514, 70 S.E. 65, 1911 Ga. App. LEXIS 13 (1911) (whether sight could have been saved by timely arrival of oculist) (decided under former Civil Code 1910, § 5876); Lanier v. State, 141 Ga. 17, 80 S.E. 5, 1913 Ga. LEXIS 290 (1913) (expert testimony on manner and cause of death) (decided under former Penal Code 1910, § 1048); Wilensky v. State, 15 Ga. App. 360, 83 S.E. 276, 1914 Ga. App. LEXIS 113 (1914) (jeweler as to symbol on watch) (decided under former Penal Code 1910, § 1048); Byrd v. State, 142 Ga. 633, 83 S.E. 513, 1914 Ga. LEXIS 484 (1914) (gun expert on wound) (decided under former Penal Code 1910, § 1048); Bates v. State, 18 Ga. App. 718, 90 S.E. 481, 1916 Ga. App. LEXIS 1221 (1916) (handwriting expert on authorship of papers) (decided under former Penal Code 1910, § 1048); Spence v. State, 20 Ga. App. 61, 92 S.E. 555, 1917 Ga. App. LEXIS 712 (1917) (accountant as to what books show) (decided under former Penal Code 1910, § 1048); Holtzendorf v. McNeil, 25 Ga. App. 792, 104 S.E. 919, 1920 Ga. App. LEXIS 216 (1920) (dentist on value of extracted tooth) (decided under former Civil Code 1910, § 5876); Bullard v. Metropolitan Life Ins. Co., 31 Ga. App. 641, 122 S.E. 75, 1924 Ga. App. LEXIS 113 (1924) (physician on death but not on contributing cause) (decided under former Civil Code 1910, § 5876); Southern Ry. v. Wessinger, 32 Ga. App. 551, 124 S.E. 100, 1924 Ga. App. LEXIS 548 (1924) (railroad engineer) (decided under former Civil Code 1910, § 5876); Taber Mill v. Southern Brighton Mills, 49 Ga. App. 390, 175 S.E. 665, 1934 Ga. App. LEXIS 416 (1934) (expert on customs and usages of trade) (decided under former Code 1933, § 38-1710); Pollard v. Page, 56 Ga. App. 503, 193 S.E. 117, 1937 Ga. App. LEXIS 147 (1937) (physician on plaintiffs’ condition, after giving basic facts) (decided under former Code 1933, § 38-1710); Southern Ry. v. Blanton, 59 Ga. App. 252, 200 S.E. 471, 1938 Ga. App. LEXIS 483 (1938) (railroad engineer on safety practices) (decided under former Code 1933, § 38-1710); Sockwell v. Lucas & Jenkins, Inc., 71 Ga. App. 765, 32 S.E.2d 201, 1944 Ga. App. LEXIS 216 (1944) (building inspector on conformance

Opinions Admissible (Cont’d) to building code) (decided under former Code 1933, § 38-1710); McDowell v. State, 78 Ga. App. 116, 50 S.E.2d 633, 1948 Ga. App. LEXIS 693 (1948) (undertaker on cause of corpse’s mutilation) (decided under former Code 1933, § 38-1710); Central Truckaway Sys. v. Harrigan, 79 Ga. App. 117, 53 S.E.2d 186, 1949 Ga. App. LEXIS 598 (1949) (physician on permanency of patient’s injuries) (decided under former Code 1933, § 38-1710); Eller v. Matthews, 216 Ga. 315, 116 S.E.2d 235, 1960 Ga. LEXIS 455 (1960) (teacher on emotional state of pupil) (decided under former Code 1933, § 38-1710); State Hwy. Dep’t v. Sinclair Ref. Co., 103 Ga. App. 18, 118 S.E.2d 293, 1961 Ga. App. LEXIS 844 (1961) (expert on damages to property) (decided under former Code 1933, § 381710); McGuire v. Davis, 437 F.2d 570, 1971 U.S. App. LEXIS 12528 (5th Cir. 1971) (physician on pain suffered by patient) (decided under former Code 1933, § 38-1710); Altamaha Convalescent Ctr., Inc. v. Godwin, 137 Ga. App. 394, 224 S.E.2d 76, 1976 Ga. App. LEXIS 2460 (1976) (plaintiff’s attorney on reasonableness of attorney’s fee) (decided under former Code 1933, § 38-1710); Hall v. State, 138 Ga. App. 20, 225 S.E.2d 705, 1976 Ga. App. LEXIS 2037 (1976) (fingerprints) (decided under former Code 1933, § 381710); Harris v. Atlantic Creosote Co., 142 Ga. App. 695, 236 S.E.2d 909, 1977 Ga. App. LEXIS 1409 (1977) (expert on vehicle’s stopping distance) (decided under former Code 1933, § 38-1710); Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349, 1980 Ga. App. LEXIS 2506 (1980) (expert on whether wound was selfinflicted) (decided under former Code 1933, § 38-1710); Smith v. State, 247 Ga. 612, 277 S.E.2d 678, 1981 Ga. LEXIS 781 (1981), superseded by statute as stated in Gibbs v. State, 340 Ga. App. 723, 798 S.E.2d 308, 2017 Ga. App. LEXIS 126 (2017) (expert on battered woman’s syndrome) (decided under former Code 1933, § 38-1710); Paxton v. State, 159 Ga. App. 175, 282 S.E.2d 912, 1981 Ga. App. LEXIS 2537, cert. denied, 248 Ga. 231, 283 S.E.2d 235, 1981 Ga. LEXIS 1121 (1981) (common origin of pubic hairs) (decided

under former Code 1933, § 38-1710); Inta-Roto, Inc. v. Guest, 160 Ga. App. 75, 286 S.E.2d 61, 1981 Ga. App. LEXIS 2887 (1981) (expert on mechanical engineering) (decided under former Code 1933, § 381710); Davis v. Williams, 165 Ga. App. 45, 299 S.E.2d 102, 1983 Ga. App. LEXIS 1758 (1983) (surveyor as to boundary line) (decided under former O.C.G.A. § 24-967); Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 319 S.E.2d 470, 1984 Ga. App. LEXIS 2164 (1984) (experts in automobile engineering and systems safety analysis) (decided under former O.C.G.A. § 24-9-67); Concrete Constr. Co. v. City of Atlanta, 176 Ga. App. 873, 339 S.E.2d 266, 1985 Ga. App. LEXIS 2588 (1985) (expert in electric engineering familiar with the installation of gas lines) (decided under former O.C.G.A. § 24-9-67); Ingram v. State, 178 Ga. App. 292, 342 S.E.2d 765, 1986 Ga. App. LEXIS 1635 (1986); Height v. State, 221 Ga. App. 647, 472 S.E.2d 485. (drug investigator on amount and manner of packaging of cocaine) (decided under former O.C.G.A. § 24-9-67). Battered women’s syndrome expert was properly permitted to testify as to why a victim would not have reported instances of abuse and why the victim dismissed a complaint for divorce and reconciled with defendant; further, the expert was properly permitted to testify as to the expert’s qualifications in the presence of the jury. Watson v. State, 278 Ga. 763, 604 S.E.2d 804, 2004 Ga. LEXIS 999 (2004), overruled in part, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020) (decided under former O.C.G.A. § 24-9-67). Fingerprint comparison expert. - State’s fingerprint expert was properly permitted to testify as fingerprint comparison evidence was not novel and was widely accepted in Georgia courts. Dailey v. State, 271 Ga. App. 492, 610 S.E.2d 126, 2005 Ga. App. LEXIS 83 (2005) (decided under former O.C.G.A. § 24-9-67). Contract terms. - If there was no applicable custom to determine, in a timber lease, the size of trees meant by the phrase “suitable for turpentine purposes,” opinion evidence would be admissible. It should be admitted, however, not to explain the meaning of descriptive terms in

the contract, but simply for the purpose of determining what class of trees or timber as to size would come within such description. Nor would the quoted phrase be varied in the phrase’s legal meaning because of the different methods of proof, for that would be the same whether a custom be shown or not, since any such custom, if existing, would presumably represent the standard of ordinarily prudent men. Dorsey v. Clements, 202 Ga. 820, 44 S.E.2d 783, 1947 Ga. LEXIS 534 (1947) (decided under former Code 1933, § 381710). Expert testimony on credibility of witness. - Generally, expert testimony as to the credibility of a witness is admissible if the subject matter involves organic or mental disorders, such as insanity, hallucinations, nymphomania, retrograde amnesia, and testimony concerning physical maladies which tend to impair mental or physical faculties. Jones v. State, 232 Ga. 762, 208 S.E.2d 850, 1974 Ga. LEXIS 1083 (1974), overruled in part, Johnson v. State, 272 Ga. 254, 526 S.E.2d 549, 2000 Ga. LEXIS 122 (2000) (decided under former Code 1933, § 38-1710). Expert’s testimony as to whether victims’ videotaped statements were coached. - Expert’s testimony as to whether victims’ videotaped statements were coached was inadmissible in a prosecution for child molestation since the jury saw the interviews for themselves and heard the victims’ direct and crossexamination as witnesses. Wright v. State, 233 Ga. App. 358, 504 S.E.2d 261 (decided under former O.C.G.A. § 24-9-67). An expert on insanity may give an opinion based upon the expert’s own examination of a person, upon the expert’s observation of that person, or upon any state of facts, supported by some evidence in the case, which the expert assumes as true. Moore v. State, 221 Ga. 636, 146 S.E.2d 895, 1966 Ga. LEXIS 658 (1966) (decided under former Code 1933, § 381710). Opinion on ultimate fact. - Defendant’s claim that a doctor improperly gave an opinion as to an ultimate fact was rejected as the doctor did not testify concerning child neglect syndrome when the

doctor testified that the doctor’s overall impression was a possible child-neglect scenario, the syndrome had been recognized and expert testimony concerning the syndrome was admissible, and a treating physician could testify that the examination of a child raised a strong suspicion of child abuse. Revells v. State, 283 Ga. App. 59, 640 S.E.2d 587, 2006 Ga. App. LEXIS 1321 (2006) (decided under former O.C.G.A. § 24-9-67). Testimony by examining nurse. - In a prosecution on charges of both child molestation and aggravated child molestation, the trial court did not abuse the court’s discretion in allowing an examining registered nurse to give an opinion that a child sex abuse victim’s injuries were consistent with ones caused by penetration by a finger when, prior to testifying, the nurse outlined the nurse’s relevant background including completion of a sexual assault nurse examiner’s program, advanced pediatric training under the supervision of a doctor involved in child abuse cases, and training and experience in performing numerous pelvic examinations on child abuse victims. Rodriguez v. State, 281 Ga. App. 129, 635 S.E.2d 402, 2006 Ga. App. LEXIS 1018 (2006) (decided under former O.C.G.A. § 24-9-67). Trial court did not err in denying the defendant’s motion in limine to exclude a nurse’s testimony, stating that the victim’s normal physical examination was consistent with claims of molestation, as the nurse simply testified that the victim’s physical examination results were consistent with the allegations, and as such was a permissible expression of the expert’s opinion. Noe v. State, 287 Ga. App. 728, 652 S.E.2d 620, 2007 Ga. App. LEXIS 1075 (2007) (decided under former O.C.G.A. § 24-9-67). Experts on toxicology. - As an expert witness was not a mere conduit for a toxicologist’s findings, because the expert reviewed the data and testing procedures to determine the accuracy of the toxicologist’s report, the expert’s testimony was properly admitted. Therefore, defense counsel was not ineffective for failing to object to the testimony. Watkins v. State,

Opinions Admissible (Cont’d) 285 Ga. 355, 676 S.E.2d 196, 2009 Ga. LEXIS 163 (2009) (decided under former O.C.G.A. § 24-9-67). Psychologist’s hypothetical based on evidence adduced at trial. - When appellant was charged with sexually molesting his daughter, and appellant acknowledged that he had sexually molested his first daughter by a previous marriage over a ten year period, the trial court did not err by admitting a psychologist’s testimony about the mathematical probabilities regarding the self-rehabilitation of pedophiles or persons with incestuous behavior, since the likelihood of a person with compulsive behavior rehabilitating himself without treatment was a subject matter not within the scope of the ordinary laymen’s knowledge and experience, and thus evidence regarding these matters was properly admissible under former O.C.G.A. § 24-9-67. Harwood v. State, 195 Ga. App. 465, 394 S.E.2d 109, 1990 Ga. App. LEXIS 573 (1990) (decided under former O.C.G.A. § 24-9-67). Medical social worker. - Witness’s testimony that a baby’s injuries were inconsistent with the history of events the defendant had described was well within the witness’s purview as a medical social worker because the witness’s daily duties required consideration of medical evidence along with personal observations to determine whether factors were present which could indicate child abuse. Nichols v. State, 278 Ga. App. 46, 628 S.E.2d 131, 2006 Ga. App. LEXIS 253 (2006), cert. denied, No. S06C1239, 2006 Ga. LEXIS 752 (Ga. Sept. 18, 2006) (decided under former O.C.G.A. § 24-9-67). Testimony of a mechanic was sufficient to prove the value of the damage to the victim’s car in a case charging second degree criminal damage to property. Wyche-Hinkle v. State, 268 Ga. App. 898, 602 S.E.2d 902, 2004 Ga. App. LEXIS 1048 (2004) (decided under former O.C.G.A. § 24-9-67). Testimony of pathologist in murder was not inadmissible because it might possibly give rise to inferences adverse to defendant. Bethea v. State, 251 Ga. 328, 304 S.E.2d 713, 1983 Ga. LEXIS 773

(1983) (decided under former O.C.G.A. § 24-9-67). Medical expert on murder victim’s fatal condition. - It was within the medical examiner’s expertise to testify, based upon the examiner’s observation of the blood stains at victim’s condo and the significance of the blood loss indicated by those stains, that in the absence of immediate medical care victim was probably dead. White v. State, 263 Ga. 94, 428 S.E.2d 789, 1993 Ga. LEXIS 409 (1993) (decided under former O.C.G.A. § 24-967). Medical examiner properly allowed to state opinion on cause of death. - County medical examiner was properly permitted to state examiner’s opinion, based on the facts contained in a 1979 autopsy report, that the victim died of a gunshot wound to the abdomen, and such opinion was not the restatement of the diagnostic opinion of another expert. Turner v. State, 273 Ga. 340, 541 S.E.2d 641, 2001 Ga. LEXIS 58, cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54, 2001 U.S. LEXIS 5836 (2001) (decided under former O.C.G.A. § 24-9-67). Testimony from medical examiner on findings. - State was properly allowed to ask a medical examiner (ME) whether the defendant’s account of the homicide was consistent with the ME’s findings in the autopsy as: 1) the ME did not state an opinion as to the veracity of any witness or the defendant; and 2) the ME’s testimony did not go to the ultimate issue because the defendant admitted strangling the victim but claimed selfdefense. Cade v. State, 289 Ga. 805, 716 S.E.2d 196, 2011 Ga. LEXIS 717 (2011) (decided under former O.C.G.A. § 24-967). Forensic pathologist on single fatal blow. - Expert’s testimony regarding the possibility of death by a single blow, and the possibility of subsequent head movement following death in that manner, was admissible because it was based on facts in evidence and because this testimony pertained to conclusions jurors would not ordinarily be able to draw for themselves. Maxwell v. State, 263 Ga. 57, 428 S.E.2d 76, 1993 Ga. LEXIS 356 (1993) (decided under former O.C.G.A. § 24-9-67). Testimony by pathologist instead of physician on injury was proper. - In

a prosecution for kidnapping and aggravated assault, the trial court properly allowed a pathologist instead of a physician to testify as to whether the holes in the victim’s shoe and an injury to the victim’s toe were caused by a bullet; the pathologist had experience in inspecting gunshot wounds on people and in clothing and footwear. (decided under former O.C.G.A. § 24-9-67). Expert testimony on bullet trajectory. - Defendant was not entitled to a new trial due to ineffective assistance of trial counsel for failure to conduct a pretrial consultation with an expert witness to utilize the evidence of the trajectory of the fatal bullet to support the defense because the defendant failed to demonstrate a reasonable probability that the trial result would have been different if counsel had made such a consultation as the undisputed evidence established that the defendant fired the first shot and was the aggressor who started the gunfight; and the fact that the defendant fired the fatal shot while trying to get away from the gunfight the defendant started did not change the analysis regarding the lack of justification as the defendant was the aggressor. Mosby v. State, 300 Ga. 450, 796 S.E.2d 277, 2017 Ga. LEXIS 1 (2017) (decided under former O.C.G.A. § 24-7707). Expert trained in behavioral science. - Expert in the areas of homicide investigation and crime scene reconstruction was allowed to testify regarding the reasons why a perpetrator might reposition and cover a victim since the challenged testimony was well within the expert’s range of training and experience and the average juror does not possess the experience necessary to discern the most common complex behavioral reasons for a perpetrator’s acting in such a manner. Foster v. State, 273 Ga. 34, 537 S.E.2d 659, 2000 Ga. LEXIS 773 (2000) (decided under former O.C.G.A. § 24-9-67). Expert testimony on DNA profile. - Expert’s testimony regarding the frequency in the population of the DNA profile obtained from three rape victims was admissible given the expert’s credentials and expertise and the expert’s testimony as to the computer program which gener-

ated the statistical frequencies to which the expert testified. Collins v. State, 267 Ga. App. 784, 600 S.E.2d 802, 2004 Ga. App. LEXIS 813 (2004) (decided under former O.C.G.A. § 24-9-67). No error resulted by admitting expert testimony on the issue of DNA testing, and because the defendant did not contend that the expert’s testimony failed to meet the Harper standard, no basis for reversal on this ground existed. Carruth v. State, 286 Ga. App. 431, 649 S.E.2d 557, 2007 Ga. App. LEXIS 800 (2007) (decided under former O.C.G.A. § 24-9-67). Expert testimony on pancreatic injury. - Trial court did not abuse the court’s discretion in allowing the state’s expert witness to testify to the cause of certain of the victim’s injuries because the expert testified that one of the victim’s injuries was caused by blunt force trauma without opining on how such trauma occurred; the opinion offered by the expert regarding the cause of the victim’s pancreatic injury was one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion was beyond the ken of the average layman. Amador v. State, 310 Ga. App. 280, 713 S.E.2d 423, 2011 Ga. App. LEXIS 541 (2011), cert. denied, No. S11C1648, 2012 Ga. LEXIS 127 (Ga. Jan. 23, 2012) (decided under former O.C.G.A. § 24-9-67). Pediatrician’s opinion that a child had been molested was one of fact and one which the jurors would not ordinarily be able to draw for themselves, and was admissible even though the testimony indirectly involved the child’s credibility. State v. Butler, 256 Ga. 448, 349 S.E.2d 684, 1986 Ga. LEXIS 871 (1986), aff’d, 181 Ga. App. 589, 353 S.E.2d 855, 1987 Ga. App. LEXIS 1494 (1987) (decided under former O.C.G.A. § 24-9-67). Defendant had no ground to contest the trial court’s decision to allow a pediatrician to give opinion testimony to show that the victims’ recitation of events was consistent with child abuse because the state proffered the pediatrician as an expert in the field of child sexual abuse, and with no objection from the defense, the trial court so qualified the pediatrician. Ledford v. State, 313 Ga. App. 389, 721 S.E.2d 585, 2011 Ga. App. LEXIS 1081

Opinions Admissible (Cont’d) (2011) (decided under former O.C.G.A. § 24-9-67). Expert’s opinion that child molested. - Expert’s testimony that in expert’s opinion the child had been molested without comment as to whether the defendant was the molester was not testimony as to the ultimate issue in the case and was not objectionable. Karonen v. State, 205 Ga. App. 852, 424 S.E.2d 47, 1992 Ga. App. LEXIS 1533 (1992), cert. denied, No. S93C0222, 1993 Ga. LEXIS 6 (Ga. Jan. 7, 1993) (decided under former O.C.G.A. § 24-9-67). Child abuse syndrome. - Trial court properly allowed a psychologist, who had examined a child molestation victim, to testify as to the psychologist’s conclusion that the victim suffered from child abuse syndrome, since the testimony was not a conclusion that the victim was in fact abused and that issue was left to the jury to determine. Cooper v. State, 200 Ga. App. 560, 408 S.E.2d 797, 1991 Ga. App. LEXIS 1081 (1991) (decided under former O.C.G.A. § 24-9-67). Trial court properly admitted an expert’s testimony as to child sexual abuse syndrome as: (1) it was helpful to the jury; and (2) laymen could not understand this syndrome without expert testimony, nor would laymen be likely to believe that a child who denied a sexual assault, or who was reluctant to discuss an assault, in fact had been assaulted; further, the expert offered no opinion as to whether the victims were being truthful, but left that determination for the jury. McCoy v. State, 278 Ga. App. 492, 629 S.E.2d 493, 2006 Ga. App. LEXIS 351 (2006) (decided under former O.C.G.A. § 24-9-67). Testimony of burglary investigator. - Testimony of a sheriff’s department’s burglary investigator as to whether, based on his training and experience, items are sometimes sold when items are stolen and whether the crime lab would process fingerprints taken from a burglary crime scene was admissible. Hestley v. State, 216 Ga. App. 573, 455 S.E.2d 333, 1995 Ga. App. LEXIS 220 (1995), cert. denied, No. S95C1054, 1995 Ga. LEXIS 620 (Ga.

May 19, 1995) (decided under former O.C.G.A. § 24-9-67). Testimony on blood samples based on electrophoresis procedure. - Expert witness may testify concerning identification of blood samples based on procedure known as electrophoresis, the statistical or mathematical probability of certain enzymes being found in the blood of the general population. Graham v. State, 168 Ga. App. 23, 308 S.E.2d 413, 1983 Ga. App. LEXIS 3368 (1983) (decided under former O.C.G.A. § 24-9-67). Evidence of source of DNA. - Trial counsel was not ineffective in failing to make a meritless objection based on the state’s expert’s testimony as to the source of the DNA on a sock as the possible mechanisms by which epithelial cells ended up on a sock were beyond the ken of the average layman; since the evidence at issue was admissible, defendant’s trial counsel was not required to object. Eley v. State, 266 Ga. App. 45, 596 S.E.2d 660, 2004 Ga. App. LEXIS 295 (2004), overruled in part, State v. Burns, 306 Ga. 117, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (2019) (decided under former O.C.G.A. § 24-9-67). Testimony of police officer on cocaine use admissible. - Knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution was not necessarily within the scope of the ordinary layman’s knowledge and experience. Therefore, the testimony of a veteran police officer on the subject would have been properly admissible under former O.C.G.A. § 24-9-67. Davis v. State, 200 Ga. App. 44, 406 S.E.2d 555, 1991 Ga. App. LEXIS 762 (1991) (decided under former O.C.G.A. § 24-9-67). Police officer’s opinion testimony that the amount of cocaine seized in the execution of a search warrant upon defendant’s residence would typically be intended for distribution by the defendant rather than for the defendant’s personal use was properly admissible. Wise v. State, 257 Ga. App. 211, 570 S.E.2d 656, 2002 Ga. App. LEXIS 1110 (2002) (decided under former O.C.G.A. § 24-9-67). Unqualified testimony of a police officer offered to show intent to distribute

cocaine, based on the amount of cocaine and the officer’s knowledge of defendant, was not competent evidence of an intent to distribute. Stephens v. State, 219 Ga. App. 881, 467 S.E.2d 201 (decided under former O.C.G.A. § 24-9-67). Crime lab chemist qualified regarding street value of drugs. - It was not error for the trial court to permit the state expert, a crime laboratory chemist, to testify concerning the “street value” of confiscated drugs, where the chemist testified that the chemist had accumulated knowledge of the street value of cocaine as a result of the chemist’s experience over years of comparing the prices paid by undercover officers during their undercover purchases with that which was supplied to the chemist for analysis. Robinson v. State, 203 Ga. App. 759, 417 S.E.2d 404, 1992 Ga. App. LEXIS 618 (1992), cert. denied, No. S92C0913, 1992 Ga. LEXIS 460 (Ga. June 4, 1992) (decided under former O.C.G.A. § 24-9-67). Although a print card was not admitted as a business record, it was relevant as the basis for an expert’s conclusion that defendant’s print matched that taken from the victim’s vehicle; despite defendant’s hearsay objection, the expert’s testimony connected defendant to the crime, and the admissibility of the expert’s inculpatory testimony did not depend upon the admission of the print. Roebuck v. State, 277 Ga. 200, 586 S.E.2d 651, 2003 Ga. LEXIS 795 (2003) (decided under former O.C.G.A. § 24-9-67). Officer is an expert on narcotics investigations. - Arresting officer should have been qualified as an expert in “narcotics investigation”; although the trial court allowed the officer’s testimony over objection. Davis v. State, 209 Ga. App. 572, 434 S.E.2d 132, 1993 Ga. App. LEXIS 971 (1993) (decided under former O.C.G.A. § 24-9-67). Officer’s testimony on effects of alcohol on body. - At the time of a defendant’s driving under the influence (DUI) trial, the arresting officer had over four years of law enforcement experience, had been trained in DUI detection and field sobriety testing, and had been involved in over 100 DUI arrests. Based on the offi-

cer’s training and experience, the officer was qualified to testify about the effects of alcohol consumption on the body. Lanwehr v. State, 265 Ga. App. 359, 593 S.E.2d 897, 2004 Ga. App. LEXIS 113 (2004) (decided under former O.C.G.A. § 24-9-67). Dock signals expert. - Trial court did not err in permitting witness to testify as an expert for procedures where hand signals or sight alone is insufficient in a personal injury action brought by longshoreman against state port authority. Georgia Ports Auth. v. Hutchinson, 209 Ga. App. 726, 434 S.E.2d 791, 1993 Ga. App. LEXIS 999 (1993), cert. denied, No. S93C1810, 1993 Ga. LEXIS 1081 (Ga. Nov. 4, 1993) (decided under former O.C.G.A. § 24-9-67). Romberg sobriety test subject to Harper standard. - Admissibility of the Romberg test is subject to the Harper standard as the significance of eyelid tremors or an individual’s internal clock, how they may be affected by the consumption of alcohol, and particularly whether a range of five seconds above or below the actual passage of 30 seconds establishes impairment, are not matters of common sense or experience, nor are they obvious to the average lay observer. Mitchell v. State, 301 Ga. 563, 802 S.E.2d 217, 2017 Ga. LEXIS 545 (2017), overruled in part, State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865, 2019 Ga. LEXIS 320 (2019) (decided under former O.C.G.A. § 24-7707). Testimony by polygraph examiner. - Trial court did not err by allowing a polygraph examiner to testify that the defendant showed deception to questions concerning an armed robbery because the defendant, by stipulation, voluntarily consented to admission of the polygraph test results. Therefore, the defendant agreed to the admission of the examiner’s opinion testimony concerning the polygraph examination, and the trial court did not err by overruling the defendant’s objection to the qualifications of the examiner, or by allowing the examiner to testify as an expert concerning the polygraph test which the examiner administered on the defendant. Jones v. State, 309 Ga. App.

Opinions Admissible (Cont’d) 886, 714 S.E.2d 590, 2011 Ga. App. LEXIS 480 (2011) (decided under former O.C.G.A. § 24-9-67). Expert testimony not objectionable. - Trial court did not err in denying a defendant’s motion for a new trial based on the ineffective assistance of counsel in failing to object to an expert’s opinion testimony because the record did not support the defendant’s argument that the expert’s testimony was objectionable; the expert’s testimony was limited to describing how the expert and doctors in the medical community generally performed genital examinations of female patients and did not touch on whether either the defendant or the victim was telling the truth on whether the defendant committed aggravated sexual battery, and the expert’s testimony regarding the typical medical examination of a preadolescent girl’s genitals was relevant to the issues raised by the defendant’s defense. Lee v. State, 300 Ga. App. 214, 684 S.E.2d 348, 2009 Ga. App. LEXIS 1125 (2009) (decided under former O.C.G.A. § 24-9-67). Expert testimony on interviewing techniques in child abuse case not improperly restricted. - Trial court did not improperly restrict the testimony of the defendant’s expert because the expert was permitted to testify at length on the propriety and effect of interviewing techniques in child sexual abuse cases; the defendant did not point out how the trial court’s decision to sustain the state’s objection to the expert’s statement unfairly restricted the expert’s testimony when the expert went on to provide the expert’s criticisms of how the victim’s interview was conducted. Rayner v. State, 307 Ga. App. 861, 706 S.E.2d 205, 2011 Ga. App. LEXIS 96 (2011), cert. denied, No. S11C0922, 2011 Ga. LEXIS 455 (Ga. May 31, 2011) (decided under former O.C.G.A. § 24-9-67). Testimony of fire investigation expert. - In a negligence action arising from a school bus fire, the trial court erroneously excluded the opinion of defendant’s fire investigation expert as the expert stating that the opinion was the best scientific guess makeable was simply the

expert’s recognition of the fact that the exact cause of the fire could not be determined with absolute certainty. Early v. Morgan Fleet Services, Inc., No. A23A0148, 2023 Ga. App. LEXIS 203 (Ga. Ct. App. May 16, 2023). Fire marshal’s testimony regarding arson. - After being qualified as an expert witness, the fire marshal’s testimony that the fire at the victims’ residence was intentionally set did not invade the province of the jury in deciding whether the defendant had committed arson because the testimony did not address other elements of the crime of arson or directly implicate the defendant as the perpetrator of that crime; and the conclusion that the fire was intentionally set was not one jurors would ordinarily be able to draw for themselves. Saffold v. State, 298 Ga. 643, 784 S.E.2d 365, 2016 Ga. LEXIS 236 (2016) (decided under former O.C.G.A. § 24-9-67). Testimony by expert on geo-cell phone analytics. - Testimony by the state’s expert witness on geo-cell phone analytics was admissible as the defendant could not affirmatively show that the alleged error in admitting the evidence probably affected the outcome below and, thus, constituted plain error because the expert’s testimony was used to indicate how the police were able to determine that, on the day of the murder - but the day before the victim’s body was disposed of by being burned - the defendant’s cell phone was located about 14 miles from where the victim’s burned body was found; and ample evidence actually placed the defendant at the murder scene and the location where the defendant and an individual attempted to cover up the crime. Jones v. State, 299 Ga. 40, 785 S.E.2d 886, 2016 Ga. LEXIS 353 (2016) (decided under former O.C.G.A. § 24-7-707). Forensic analyst of telephone records. - Trial court did not abuse the court’s discretion in qualifying the forensic analyst as an expert or in admitting the forensic analyst’s testimony regarding the telephone calls between those involved in the drug transactions because the forensic analyst was examined extensively on specific training as an analyst of telephone records and the specialized

computer programs used in law enforcement data compilation, and because the correlation and analysis of large numbers of cellular telephone calls, using specialized computer programs and other tools and resources specific to forensic analysis, was a matter beyond the ken of the average layperson. Maldonado v. State, 325 Ga. App. 41, 752 S.E.2d 112, 2013 Ga. App. LEXIS 960 (2013), cert. denied, No. S14C0489, 2014 Ga. LEXIS 386 (Ga. May 5, 2014) (decided under former O.C.G.A. § 24-7-707). 2. Opinions Inadmissible Testimony was inadmissible as expert testimony in the following cases. - See Wylly v. Gazan, 69 Ga. 506, 1881 Ga. LEXIS 403 (1881) (meaning of “more or less” in deed) (decided under former Code 1882, § 3868); Central R.R. v. DeBray, 71 Ga. 406, 1883 Ga. LEXIS 194 (1883) (whether employees were required to get on or off moving train) (decided under former Code 1882, § 3868); Carter v. Carter Elec. Co., 156 Ga. 297, 119 S.E. 737, 1923 Ga. LEXIS 241 (1923) (damage to business from use of similar name by competitor) (decided under former Civil Code 1910, § 5876); Davies v. Blasingame, 177 Ga. 450, 170 S.E. 477, 1933 Ga. LEXIS 199 (1933) (soundness of property title) (decided under former Code 1933, § 38-1710); United States v. Roberts, 192 F.2d 893, 1951 U.S. App. LEXIS 2811 (5th Cir. 1951) (continuing total disability a matter of law and fact) (decided under former Code 1933, § 38-1710). Expert testimony on credibility of witness. - If the characteristic of a witness attacked does not involve some organic or mental disorder or some impairment of the mental or physical faculties by injury, disease, or otherwise, or if there has been insufficient observation by the expert, expert testimony is usually excluded. Jones v. State, 232 Ga. 762, 208 S.E.2d 850, 1974 Ga. LEXIS 1083 (1974), overruled in part, Johnson v. State, 272 Ga. 254, 526 S.E.2d 549, 2000 Ga. LEXIS 122 (2000) (decided under former Code 1933, § 38-1710). Trial court erred by allowing a state’s expert to testify, over the defendant’s objection, that the expert did not believe the

victim made up the allegations against the defendant, as such was an ultimate issue of fact, and nothing suggested that the determination of the victim’s credibility was beyond the ken of the jurors; thus, to the extent that Smith v. State, 257 Ga. App. 88, 570 S.E.2d 400 (2002), allowed an expert to give an opinion on a witness’s credibility or to express an opinion on the ultimate issue of defendant’s guilt to rehabilitate the credibility of a witness whose veracity was attacked, it was overruled. Patterson v. State, 278 Ga. App. 168, 628 S.E.2d 618, 2006 Ga. App. LEXIS 268 (2006) (decided under former O.C.G.A. § 24-9-67). Expert testimony on transference theory. - Trial court’s refusal to admit eyewitness expert testimony was supported by extensive corroborating evidence because there was no factual basis for allowing testimony regarding the potential for misidentification based on transference theory; the defendant presented no evidence indicating that the victim saw or could have seen any other person at the time the instant offenses took place. Cannon v. State, 310 Ga. App. 262, 712 S.E.2d 645, 2011 Ga. App. LEXIS 546 (2011) (decided under former O.C.G.A. § 24-9-67). Opinion based on out-of-court evidence. - Medical expert does not have the right to give in evidence an opinion based on information which the expert has derived from private conversations with third parties. Moore v. State, 221 Ga. 636, 146 S.E.2d 895, 1966 Ga. LEXIS 658 (1966) (decided under former Code 1933, § 38-1710). Witness invaded province of jury. - Expert witness’s testimony that the childhood maltreatment syndrome or abused child syndrome was the “manner” in which the fatal injuries occurred, and that the fatal injuries occurred “in the process” of the childhood maltreatment syndrome, constituted the expert’s opinion that the fatal injuries in fact resulted from child abuse. Accordingly, as the jurors had the ability to reach this conclusion personally, the trial court erred by allowing the expert witness’s testimony. McCartney v. State, 262 Ga. 156, 414 S.E.2d 227, 1992 Ga. LEXIS 225 (1992), overruled in part,

Opinions Inadmissible (Cont’d) Linson v. State, 287 Ga. 881, 700 S.E.2d 394, 2010 Ga. LEXIS 639 (2010) (decided under former O.C.G.A. § 24-9-67). When testimony is not based on an expert opinion and is mere speculation, it is worthless and the trial court does not err in striking the testimony from the record. Gould v. State, 168 Ga. App. 605, 309 S.E.2d 888, 1983 Ga. App. LEXIS 2865 (1983) (decided under former O.C.G.A. § 24-9-67); Welborn v. State, 174 Ga. App. 853, 331 S.E.2d 890, 1985 Ga. App. LEXIS 2758 (1985) (decided under former O.C.G.A. § 24-9-67). Medical malpractice expert’s affidavit. - In a medical malpractice action, the trial court abused the court’s discretion in concluding that the parents’ expert affidavit was insufficient because reviewing the allegations of the complaint, the expert’s affidavits, and the trial court’s conclusions, the expert was not required to practice as a psychiatrist or have specialized knowledge of the standard of care of psychiatrists to satisfy the requirements of O.C.G.A. §§ 9-11-9.1 and 24-2702(c)(2)(C). Russell v. Kantamneni, 363 Ga. App. 899, 873 S.E.2d 458, 2022 Ga. App. LEXIS 245 (2022). Psychiatrist’s reliance on psychologist’s test results. - To the extent the state’s psychiatric expert relied upon the opinion of another psychologist expert not before the court, the expert’s testimony was inadmissible hearsay without probative value even in the absence of an objection. Brown v. State, 206 Ga. App. 800, 427 S.E.2d 9, 1992 Ga. App. LEXIS 1791 (1992), cert. denied, No. S93C0586, 1993 Ga. LEXIS 339 (Ga. Apr. 8, 1993) (decided under former O.C.G.A. § 24-9-67). Psychologist’s opinion irrelevant. - State’s motion in limine seeking to exclude the testimony of a defendant’s psychologist was properly granted as the defendant claimed that defendant shot the victim in self-defense; the defendant’s psychological state was irrelevant. Lott v. State, 281 Ga. App. 373, 636 S.E.2d 102, 2006 Ga. App. LEXIS 1106 (2006) (decided under former O.C.G.A. § 24-9-67). School counselor’s opinion. - Admission of a school counselor’s opinion

that a child had been molested based on the child’s behavior and demeanor during the counselor’s interview of the child was reversible error. Hilliard v. State, 226 Ga. App. 478, 487 S.E.2d 81 (decided under former O.C.G.A. § 24-9-67). Medical examiner’s opinion on defendant’s demeanor admissible. - Trial court did not err in allowing the testimony of the deputy medical examiner in which the examiner related observations of the defendant during an interview of the defendant because the examiner stated the general observation of the defendant’s demeanor upon being told that the defendant’s child had died. Smith v. State, 290 Ga. 428, 721 S.E.2d 892, 2012 Ga. LEXIS 85 (2012) (decided under former O.C.G.A. § 24-9-67). Opinion as to alcohol content drop in dead person. - Question propounded to a forensic chemist concerning whether or not the fact that a person might have died and it had been some days before the person was found would in any way decrease the alcohol content of the victim’s body was proper under former O.C.G.A. § 24-9-67. Cameron v. State, 256 Ga. 225, 345 S.E.2d 575, 1986 Ga. LEXIS 754 (1986) (decided under former O.C.G.A. § 24-9-67). Physician’s opinion of “rape.” - Allowing any question and answer of a physician who examined the victim of an alleged rape which would involve the physician’s opinion stated in the physician’s report that “this is rape” constituted reversible error. Nichols v. State, 177 Ga. App. 689, 340 S.E.2d 654, 1986 Ga. App. LEXIS 2452 (1986) (decided under former O.C.G.A. § 24-9-67). Ophthalmologist testimony in DUI case inadmissible. - Trial court did not err in not allowing an ophthalmologist to testify as an expert that a DUI defendant had two surgeries in the past, which could have affected the defendant’s performance on walk-and-turn and one-leg-stand tests. The witness had no personal knowledge of the surgery in question or of the medical records referring to the surgeries; moreover, the defendant’s live-in companion was permitted to testify at length regarding the defendant’s medical issues arising from the surgery and its effect on the

defendant’s ability to walk normally at the time of the arrest. Aal v. State, 290 Ga. App. 252, 659 S.E.2d 609, 2008 Ga. App. LEXIS 29 (2008) (decided under former O.C.G.A. § 24-9-67). Officer’s testimony on marijuana test results. - Officer’s testimony regarding officer’s training and experience with “ontrack system” urine specimen analysis for the presence of tetrahydrocannabinol was insufficient foundation for the admission of the test results. Hubbard v. State, 207 Ga. App. 703, 429 S.E.2d 123, 1993 Ga. App. LEXIS 322 (1993) (decided under former O.C.G.A. § 24-9-67). Hair analysis results cannot be used to make positive identification of an individual. Hudson v. State, 166 Ga. App. 660, 305 S.E.2d 409, 1983 Ga. App. LEXIS 2288 (1983) (decided under former O.C.G.A. § 24-9-67). False confession theory. - Trial court did not abuse the court’s discretion or violate the defendant’s Sixth and Fourteenth Amendment rights by excluding expert testimony about false confessions; the Georgia Supreme Court found that the false confession theory was not reliable and had not yet reached a verifiable stage of scientific certainty. Crawford v. State, 283 Ga. App. 645, 642 S.E.2d 335, 2007 Ga. App. LEXIS 148 (2007), cert. denied, No. S07C0937, 2007 Ga. LEXIS 442 (Ga. June 4, 2007) (decided under former O.C.G.A. § 24-9-67). Trial court did not improperly exclude testimony from the defendant’s proffered expert witness on police interrogation tactics resulting in false confessions, as such theory had not reached a verifiable stage of scientific certainty, and because the issue of whether the defendant’s inculpatory statements were the results of threats or coercion was a matter the jury could discern for itself. Lyons v. State, 282 Ga. 588, 652 S.E.2d 525, 2007 Ga. LEXIS 781 (2007), overruled in part, Garza v. State, 284 Ga. 696, 670 S.E.2d 73, 2008 Ga. LEXIS 865 (2008) (decided under former O.C.G.A. § 24-9-67). 3. Witness Qualified as Expert Automobile mechanic. - Contention that testimony of witness qualified as an expert was erroneously admitted for the

reason that the witness had testified that the witness did not see the car before impact, and therefor could not testify as to the car’s value before the car was damaged, was without merit since the witness actually repaired the car, and was not only a mechanic, but had long experience in buying and selling cars of the same type and model. Hill v. Kirk, 78 Ga. App. 310, 50 S.E.2d 785, 1948 Ga. App. LEXIS 735 (1948) (decided under former Code 1933, § 38-1710). Specialist in obstetrics and gynecology. - In a prosecution for rape, a physician may offer the physician’s opinion as to what caused the tear in the victim’s vagina over an objection that the physician’s expertise to offer such an opinion has not been established, where the physician is duly qualified as a specialist in obstetrics and gynecology and testifies that one of the physician’s duties at the medical center where the physician worked was to examine rape victims. Holt v. State, 147 Ga. App. 186, 248 S.E.2d 223, 1978 Ga. App. LEXIS 2842 (1978) (decided under former Code 1933, § 38-1710). Qualified medical expert with a first-hand knowledge of the material facts is well within permissible bounds in stating the expert’s opinion and inferences concerning the existence and cause of a medical condition. McGuire v. Davis, 437 F.2d 570, 1971 U.S. App. LEXIS 12528 (5th Cir. 1971) (decided under former Code 1933, § 38-1710). Investigator testifying as an expert. - In an aggravated assault case, it was permissible for an investigator, testifying as an expert, to state that based on the investigator’s experience, persons who suffered from cuts or stab wounds often did not remember being stabbed. This was a conclusion that was beyond the ken of the average layperson; even if the investigator’s testimony was somewhat based upon hearsay, the opinion was mainly derived from the investigator’s many years of professional experience. Jackson v. State, 291 Ga. App. 287, 661 S.E.2d 665, 2008 Ga. App. LEXIS 474 (2008) (decided under former O.C.G.A. § 24-9-67). Officer properly qualified as expert witness in drug possession and distribution. - In a prosecution for possession of cocaine with intent to distribute

Witness Qualified as Expert (Cont’d) (O.C.G.A. § 16-13-30(b)), as the arresting officer testified to making 35 to 40 drugrelated arrests, about half of which were for possession with intent to distribute, the trial court did not abuse the court’s discretion in qualifying the officer as an expert witness in drug possession and distribution. Hight v. State, 293 Ga. App. 254, 666 S.E.2d 678, 2008 Ga. App. LEXIS 839 (2008) (decided under former O.C.G.A. § 24-9-67). Any error waived by failure to object. - Pro se defendant’s claim that the trial court improperly admitted lay testimony on blood splatters was rejected as defendant failed to object to the admission of the lay opinions at trial; further, in light of the overwhelming evidence of defendant’s guilt, any error was harmless. Swain v. State, 268 Ga. App. 135, 601 S.E.2d 491, 2004 Ga. App. LEXIS 870 (2004) (decided under former O.C.G.A. § 24-9-67). Expert testimony about signatures. - Trial court did not abuse the court’s discretion by ruling that expert testimony was admissible as the expert did not testify as to whether the signatures on the checks belonged to the widow, the defendant, or some other person as the expert merely testified that the signatures reviewed were substantially different and went on to describe the differences the expert noticed in a review of the materials. Carr v. State, 350 Ga. App. 461, 829 S.E.2d 641, 2019 Ga. App. LEXIS 324 (2019), cert. denied, No. S19C1422, 2020 Ga. LEXIS 15 (Ga. Jan. 13, 2020) (decided under former O.C.G.A. § 24-7-707). Civil Cases 1. In General Applicability to torts other than malpractice claim. - In a suit for simple negligence, negligence per se, wrongful death, intentional infliction of emotional distress, breach of contract, and negligent supervision and training, summary judgment was improperly granted to the defendants because the plaintiffs were not required to establish that the plaintiffs’ expert met the requirements of

O.C.G.A. § 24-7-702(c)(2)(D) as the plaintiffs’ suit was not a medical malpractice action as the facility where the plaintiffs’ son collapsed was a day facility that provided education, life skills, job assistance, and rehabilitation services to people with mental and physical disabilities, and the individual defendants listed in the case were non-medical personnel and personal care givers. Blake v. KES, Inc., 336 Ga. App. 43, 783 S.E.2d 432, 2016 Ga. App. LEXIS 110 (2016). No error in excluding expert testimony. - As vehicle occupants failed to satisfy the Daubert factors or any other reasonable criteria for purposes of measuring the reliability of their expert witness’s conclusions with respect to a vehicle accident that occurred in a construction zone, a trial court did not abuse the court’s discretion when the court excluded the witness’s testimony under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703); the expert’s conclusions were based solely on the expert’s own assertions and were unsupported by either the Daubert factors or any other reasonable reliability criteria. HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 697 S.E.2d 770, 2010 Ga. LEXIS 493 (2010) (decided under former O.C.G.A. § 24-967.1). It was within the trial court’s discretion to exclude an expert witness’s testimony because a sister and a brother failed to satisfy the Daubert factors or any other reasonable criteria by which the trial court could measure the reliability of the expert’s conclusions; the expert failed to cite any treatise or authority supporting the expert’s opinion, and the sister and brother presented no evidence that the expert had any experience that would supply the foundation supporting the expert’s conclusions. HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 697 S.E.2d 770, 2010 Ga. LEXIS 493 (2010) (decided under former O.C.G.A. § 24-9-67.1). Trial court did not abuse the court’s discretion by excluding evidence of one appellant’s intent as to the reconveyance of certain funds because no abuse of discretion occurred by excluding evidence of a cumulative nature that could have confused the jury about the primary issue

under consideration and created a re-trial. Interfinancial Midtown, Inc. v. Choate Constr. Co., 343 Ga. App. 793, 806 S.E.2d 255, 2017 Ga. App. LEXIS 479 (2017). Opinion of a witness qualified as expert may be given on facts proved by other witnesses. DOT v. Baldwin, 292 Ga. App. 816, 665 S.E.2d 898, 2008 Ga. App. LEXIS 874 (2008) (decided under former O.C.G.A. § 24-9-67.1). Timeliness of motion in limine. - In a customer’s personal injury action against a stylist and a hair salon alleging chemical burns, while a motion in limine to exclude the customer’s expert in chemistry was not timely under former O.C.G.A. § 24-9-67.1(d) (see now O.C.G.A. §§ 24-7-702, 24-7-703), the trial court properly considered the motion and granted the motion as the customer did not make the expert available for deposition until just one week prior to trial. Giannotti v. Beleza Hair Salon, Inc., 296 Ga. App. 636, 675 S.E.2d 544, 2009 Ga. App. LEXIS 301 (2009) (decided under former O.C.G.A. § 24-9-67.1). Subject matter improper for expert testimony. - In a negligence action, the trial court erred by allowing the investigating police officer to give expert testimony about the color of the traffic light as the color of the light was a question that average jurors could have answered for themselves, and because the color of the traffic light was the determining factor for assessing negligence, the officer’s expert opinion on this issue likely influenced the jury’s verdict; thus, based on such error, a new trial was ordered. Purcell v. Kelley, 286 Ga. App. 117, 648 S.E.2d 454, 2007 Ga. App. LEXIS 701 (2007) (decided under former O.C.G.A. § 24-9-67.1). Objections to expert opinions not timely filed. - In a tenant’s action against the leasing agent of the tenant’s apartment complex alleging that the tenant was injured by soot emitted from the apartment’s heating system, the trial court properly refused to exclude expert opinions on behalf of the tenant on the ground that the opinions were inadmissible under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703); although the agent had notice that the tenant intended to rely on the experts’

opinions, it did not assert its claim until the last business day before the trial and therefore failed to seek a timely ruling no later than the final pretrial conference contemplated under O.C.G.A. § 9-11-16 and as required by former § 24-9-67.1(d). Ambling Mgmt. Co. v. Purdy, 283 Ga. App. 21, 640 S.E.2d 620, 2006 Ga. App. LEXIS 1478 (2006), cert. denied, No. S07C0621, 2007 Ga. LEXIS 265 (Ga. Mar. 26, 2007) (decided under former O.C.G.A. § 24-967.1). Expert testimony was properly allowed in a medical negligence action because the suing patient failed to timely challenge the expert evidence via former O.C.G.A. § 24-9-67.1(d) (see now O.C.G.A. §§ 24-7702, 24-7-703), by way of a pretrial hearing; moreover, even assuming that the untimeliness of the patient’s request for a hearing did not waive the particular grounds asserted in a motion to strike brought at the close of evidence, the patient nevertheless waived all remaining objections to the expert testimony by failing to object contemporaneously. Airasian v. Shaak, 289 Ga. App. 540, 657 S.E.2d 600, 2008 Ga. App. LEXIS 139 (2008) (decided under former O.C.G.A. § 24-967.1). In a negligence suit involving the death of an individual in an automobile collision, a trial court erred by declaring that application of former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703), with regard to a hitch manufacturer seeking to exclude plaintiff’s expert witness, would have been unconstitutional as the motion to exclude the expert was filed several months after the final pretrial conference had already taken place and, thus, the time period within which the trial court was required to hold a hearing and rule on the motion had already passed. However, application of the former statute would not have changed the trial court’s ultimate, and correct, conclusion that the hitch manufacturer’s motion to exclude the expert was without merit based on the time period for ruling on the motion having already passed. Ford Motor Co. v. Gibson, 283 Ga. 398, 659 S.E.2d 346, 2008 Ga. LEXIS 296 (2008) (decided under former O.C.G.A. § 24-9-67.1). Objections to expert timely filed. - Trial court did not err in granting the plaintiff’s motion in limine as to the defen-

In General (Cont’d) dant’s expert in a slip and fall case because the defendant did not identify the doctor as an expert witness until one business day before the consolidated pretrial order was filed, which reserved the plaintiff’s right to file motions to challenge any late-disclosed experts. Vineyard Indus. v. Bailey, 343 Ga. App. 517, 806 S.E.2d 898, 2017 Ga. App. LEXIS 525 (2017), cert. denied, No. S18C0480, 2018 Ga. LEXIS 314 (Ga. May 7, 2018). Expert’s opinion must be product of reliable principles and methods. - Trial court did not abuse the court’s discretion in applying former O.C.G.A. § 249-67.1 (see now O.C.G.A. §§ 24-7-702, 247-703), and excluding the testimony of two experts in plaintiffs’ personal injury suit because neither witness’s testimony was shown to be the product of reliable principles and methods. One expert’s testimony on the issue of causation lacked scientific support, and the other expert’s testimony on the issue of labeling used standards having no specific relevance to consumer use of products, and the opinion was based solely on data obtained from the Internet and from plaintiffs’ attorneys. Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603, 2008 Ga. LEXIS 249 (2008) (decided under former O.C.G.A. § 24-9-67.1). 2. Medical Experts Use of word “or” or “and” in former statute. - Legislature’s use of the word “or” between former O.C.G.A. § 24-967.1(c)(2)(A) and (c)(2)(B) (see now O.C.G.A. §§ 24-7-702, 24-7-703), followed by the legislature’s use of the word “and” between former § 24-9-67.1(c)(2)(B) and (c)(2)(C), indicated that a medical expert must show either active practice or teaching for at least three of the last five years, but that whichever of these may be the case, the expert must also be a member of the same profession as the person whose performance the expert was evaluating. For the purposes of former § 24-9-67.1, a pharmacist was not a member of the same profession as a medical doctor. Smith v. Harris, 294 Ga. App. 333, 670 S.E.2d 136, 2008 Ga. App. LEXIS 1179 (2008), cert.

denied, No. S09C0428, 2009 Ga. LEXIS 328 (Ga. June 8, 2009) (decided under former O.C.G.A. § 24-9-67.1). Interpretation of paragraph (c)(2). - Georgia Supreme Court views the requirements of O.C.G.A. § 24-7-702 subparagraphs (c)(2)(A) and (c)(2)(B) as together being conjunctive with subparagraphs (c)(2)(C) and (c)(2)(D) and, thus, holds that, to be qualified to testify as an expert, the proffered witness must be a member of the same profession as the defendant whose conduct is at issue, or be a physician satisfying the supervision requirements of subparagraph (c)(2)(D). Hankla v. Postell, 293 Ga. 692, 749 S.E.2d 726, 2013 Ga. LEXIS 784 (2013). Medical opinion based on incomplete history. - In an action filed pursuant to the Federal Employer’s Liability Act, 45 U.S.C. § 51 et seq., the trial court did not abuse the court’s discretion in excluding the testimony of an employee’s treating physician as the doctor’s conclusions were based on an incomplete medical history of the employee, without considering earlier lung-related illnesses, and while unaware of the employee’s prior chemical exposure and treatment by other physicians. Shiver v. Ga. & Fla. Railnet, Inc., 287 Ga. App. 828, 652 S.E.2d 819, 2007 Ga. App. LEXIS 1039 (2007), cert. denied, No. S08C0394, 2008 Ga. LEXIS 330 (Ga. Mar. 31, 2008) (decided under former O.C.G.A. § 24-9-67.1). Retired physician. - In a customer’s slip and fall case against a dry cleaner establishment, the trial court did not err by denying the customer’s motion for a new trial and by excluding the testimony of one of the customer’s expert witnesses. The expert was not qualified since the expert was retired and not a licensed physician and the testimony of that expert was cumulative of other expert testimony admitted at trial, therefore, any alleged error was harmless. Muskett v. Sketchley Cleaners, Inc., 297 Ga. App. 561, 677 S.E.2d 731, 2009 Ga. App. LEXIS 479 (2009), cert. denied, No. S09C1422, 2009 Ga. LEXIS 412 (Ga. June 29, 2009) (decided under former O.C.G.A. § 24-9-67.1). Medical malpractice. - In a patient’s medical malpractice action, the testimony of an expert witness was properly ex-

cluded as the opinion was based on facts stated in a hypothetical question which were not proven by other witnesses or other competent evidence. Moreover, a motion in limine entered against the patient as to another expert witness’s testimony was not addressed on appeal as the patient never called the expert to testify, and thus, the issue was abandoned. Hawkins v. OB-GYN Assocs., P.A., 290 Ga. App. 892, 660 S.E.2d 835, 2008 Ga. App. LEXIS 389 (2008), cert. denied, No. S08C1440, 2008 Ga. LEXIS 713 (Ga. Sept. 8, 2008) (decided under former O.C.G.A. § 24-9-67.1). Expert’s testimony was properly excluded in a medical malpractice suit for corrective bladder surgery for perforations following a hysterectomy because the expert was board certified in geriatrics, and the expert had not been engaged in the active practice of gynecology or urology for three of the five years before the patient’s operation. Hope v. Kranc, 304 Ga. App. 367, 696 S.E.2d 128, 2010 Ga. App. LEXIS 528 (2010), cert. denied, No. S10C1724, 2010 Ga. LEXIS 801 (Ga. Oct. 18, 2010) (decided under former O.C.G.A. § 24-9-67.1). Trial court did not abuse its discretion in denying the appellants’ motion to exclude an expert’s opinion that the decedent’s severe anemia was a proximate cause of the decedent’s death as the expert did not fail to consider, or give dismissive testimony of, other possible causes of death; the expert opined that the decedent’s severe anemia coupled with the decedent’s other comorbidities led to his death, but that the decedent probably would not have died when the decedent did without such severe anemia; and the appellant doctor acknowledged that the decedent’s severe anemia was life-threatening. MyFamilyDoc, LLC v. Johnston, 366 Ga. App. 459, 883 S.E.2d 404, 2023 Ga. App. LEXIS 23 (2023). Nursing expert. - In a mother’s medical malpractice action against a hospital, the trial court did not abuse the court’s discretion by finding that the mother’s witness was not admissible as an expert on whether any member of the hospital’s nursing staff breached the standard of care pursuant to former O.C.G.A.

§ 24-9-67.1(c)(2)(D) (see now O.C.G.A. §§ 24-7-702, 24-7-703) because the witness deposed that the witness did not train or practice as a nurse, did not train nurses, did not supervise nurses outside of normal nurse-physician interactions, and did not hold out to be an expert in nursing or in the standard of care of nurses. Pendley v. S. Reg’l Health Sys., 307 Ga. App. 82, 704 S.E.2d 198, 2010 Ga. App. LEXIS 1105 (2010) (decided under former O.C.G.A. § 24-9-67.1). Trial court did not abuse its discretion in disqualifying two of the plaintiff’s expert witnesses as there was no evidence from the doctor’s original affidavit or deposition testimony that the doctor was a physician who during at least three of the last five years worked, supervised, taught, or instructed nurses, and the nurse was not qualified to tender an expert opinion given the absence of evidence or testimony concerning the nurse’s care or management of rehabilitation patients at risk for deep-vein thrombosis. Orr v. SSC Atlanta Operating Co., 360 Ga. App. 702, 860 S.E.2d 217, 2021 Ga. App. LEXIS 376 (2021). Pathologist. - Opinion of the plaintiff’s expert, a pathologist, failed the first element of Daubert because the expert relied on the theory that any exposure to the asbestos in the defendant’s product would contribute to the development of mesothelioma, yet the expert testified that the theory was essentially untestable and had not been tested. Thus, the expert’s testimony was properly excluded under former O.C.G.A. § 24-9-67.1(b)(2) (see now O.C.G.A. §§ 24-7-702, 24-7-703) since it was not the product of reliable principles and methods. Butler v. Union Carbide Corp., 310 Ga. App. 21, 712 S.E.2d 537, 2011 Ga. App. LEXIS 495 (2011), cert. denied, No. S11C1620, 2011 Ga. LEXIS 857 (Ga. Oct. 17, 2011) (decided under former O.C.G.A. § 24-9-67.1). Same profession requirement applies to medical experts. - Under former O.C.G.A. § 24-9-67.1(c) (see now O.C.G.A. §§ 24-7-702, 24-7-703), the trial court erred in allowing a pharmacist to testify about a physician’s negligence. A medical expert had to show either active practice or teaching for three of the last

Medical Experts (Cont’d) five years, and also had to be a member of the same profession as the person whose performance the expert was evaluating. Smith v. Harris, 294 Ga. App. 333, 670 S.E.2d 136, 2008 Ga. App. LEXIS 1179 (2008), cert. denied, No. S09C0428, 2009 Ga. LEXIS 328 (Ga. June 8, 2009) (decided under former O.C.G.A. § 24-9-67.1). Georgia Supreme Court construes the same profession requirement to apply to all proffered medical experts, even those experienced in the procedure at issue through active practice. Hankla v. Postell, 293 Ga. 692, 749 S.E.2d 726, 2013 Ga. LEXIS 784 (2013). Appellate court properly held that a trial court abused the court’s discretion by allowing an obstetrician/gynecologist to testify as an expert witness regarding a nurse midwife’s treatment rendered to a patient because the obstetrician/gynecologist was neither a member of the same profession as the midwife nor supervised midwives as required under O.C.G.A. § 24-7-702. Hankla v. Postell, 293 Ga. 692, 749 S.E.2d 726, 2013 Ga. LEXIS 784 (2013). Testimony by examining physician. - Physician who has examined an injured party may describe what the physician has seen and give the physician’s expert inferences therefrom. McGuire v. Davis, 437 F.2d 570, 1971 U.S. App. LEXIS 12528 (5th Cir. 1971) (decided under former Code 1933, § 38-1710). Practicing physician was an expert witness on sanity. Petty v. Folsom, 229 Ga. 477, 192 S.E.2d 246, 1972 Ga. LEXIS 657 (1972) (decided under former Code 1933, § 38-1710). Specialists in cardiac physiology. - Two doctors who specialized in cardiac physiology were qualified to testify about the effects on a patient of a heart medication a doctor gave to a patient, and the appellate court reversed the trial court’s ruling that the doctors could not testify and the court’s judgment dismissing the spouse’s claims against a pharmaceutical manufacturer that produced the medication, alleging strict products liability and negligent failure to warn. Bryant v. Hoffmann-La Roche, Inc., 262 Ga. App. 401,

585 S.E.2d 723, 2003 Ga. App. LEXIS 945 (2003), cert. denied, No. S03C1724, 2003 Ga. LEXIS 1044 (Ga. Nov. 17, 2003) (decided under former O.C.G.A. § 24-9-67). Opinion based on opinions of other health care providers. - Trial court erred in admitting a treating physician’s opinions which were predicated in part on the opinions of other health care providers which were not admitted into evidence. Southern Bell Tel. & Tel. Co. v. Franklin, 196 Ga. App. 474, 396 S.E.2d 514, 1990 Ga. App. LEXIS 967 (1990), cert. denied, No. S90C1493, 1990 Ga. LEXIS 610 (Ga. Sept. 26, 1990) (decided under former O.C.G.A. § 24-9-67). Expert on replantation. In a medical malpractice case in which the surgeon incorrectly replanted the patient’s amputated portion of the index finger on the longer finger, and the amputated portion of the long finger on the index finger, the trial court did not err in concluding that the patient’s medical expert was qualified to testify because, while the expert had only performed a handful of multi-digit replantation procedures, all of which took place prior to 2011, the expert possessed an appropriate level of knowledge in performing the procedure at issue as multidigit replantation procedures were far less common than single-digit replantation procedures. Howell v. Cochran, 365 Ga. App. 80, 877 S.E.2d 625, 2022 Ga. App. LEXIS 393 (2022). Opinion going to matter of ultimate fact. - Medical expert witness may give the expert’s opinion as to the cause of an injury, but if the cause of the injury constituted the ultimate issue of fact to be determined by the fact finding tribunal, this opinion was not absolutely binding on such tribunal. Lockheed Aircraft Corp. v. Marks, 88 Ga. App. 167, 76 S.E.2d 507, 1953 Ga. App. LEXIS 1034 (1953), overruled in part, Fowler v. Atlanta, 116 Ga. App. 352, 157 S.E.2d 306, 1967 Ga. App. LEXIS 1311, 1967 Ga. App. LEXIS 1324, 1967 Ga. App. LEXIS 810 (1967) (decided under former Code 1933, § 38-1710). When differing ultimate conclusions of physicians as to whether a doctor-patient relationship existed evinced no more than a difference of nonmedical opinion between witnesses who

happened to be physicians, those conclusions were neither admissible nor probative as expert medical testimony. Clanton v. Von Haam, 177 Ga. App. 694, 340 S.E.2d 627, 1986 Ga. App. LEXIS 1503 (1986) (decided under former O.C.G.A. § 24-967). Physician’s opinion of doctor-patient relationship. - No professional skill or specialized medical knowledge was necessarily required to resolve the issue whether a doctor-patient relationship existed since the initial creation of such a relationship was well within the comprehension of the average layman, and a physician’s affidavit on this issue was neither probative nor admissible as expert medical testimony. Minster v. Pohl, 206 Ga. App. 617, 426 S.E.2d 204, 1992 Ga. App. LEXIS 1725 (1992) (decided under former O.C.G.A. § 24-9-67). Rheumatologist testifying on the cause of an injured party’s scleroderma. - Trial court properly allowed a customer who fell while shopping at a home products store to offer the testimony of experts who opined that scleroderma the customer developed shortly after the customer underwent surgical fusion of two vertebrae was caused by trauma the customer suffered when the customer fell, and the court did not err when the court declined to apply the test established by the Supreme Court of Georgia in its Harper decision when it decided if the customer’s experts could testify. Home Depot U.S.A., Inc. v. Tvrdeich, 268 Ga. App. 579, 602 S.E.2d 297, 2004 Ga. App. LEXIS 965 (2004), cert. denied, No. S04C1974, 2004 Ga. LEXIS 983 (Ga. Oct. 25, 2004) (decided under former O.C.G.A. § 24-967). Qualification requirements under O.C.G.A. § 24-7-702 do not apply to a defendant physician. Chadwick v. Brazell, 331 Ga. App. 373, 771 S.E.2d 75, 2015 Ga. App. LEXIS 144 (2015). Federal interpretation of expert testimony in state medical malpractice claims brought in federal court. - Citing the Eleventh Circuit holding in McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004) that, when evaluating expert testimony in Georgia state medical malpractice claims brought in federal court

pursuant to supplemental jurisdiction, the matter is substantive and subject to state law, the federal district court held that former O.C.G.A. § 24-9-67.1 was applicable to the medical malpractice action, and relied upon the factors specified in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993) for determining admissibility of expert testimony under Fed. R. Evid. 702 in construing former § 24-9-67.1. Dukes v. State, 428 F. Supp. 2d 1298, 2006 U.S. Dist. LEXIS 18201 (N.D. Ga.), aff’d, 212 Fed. Appx. 916, 2006 U.S. App. LEXIS 32150 (11th Cir. 2006) (decided under former O.C.G.A. § 24-967.1). Expert properly qualified in medical malpractice. - Trial court did not abuse the court’s discretion in determining that the patient’s expert had knowledge and experience in a practice or specialty relevant to the hospitalist’s alleged negligence considering the scope of the allegations of negligence in the complaint and the nature of the expert’s averments and testimony regarding the expert’s medical background, experience, and area of expertise. Mekoya v. Clancy, 360 Ga. App. 452, 861 S.E.2d 409, 2021 Ga. App. LEXIS 371 (2021). Nurse’s affidavit insufficient in case alleging physical therapist’s negligence. - Trial court erred in ruling that a registered nurse could provide an expert affidavit regarding a physical therapist’s care, given that O.C.G.A. § 9-11-9.1(g) categorized nurses and physical therapists as practicing separate professions, and because an expert was required to meet the conditions of former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7702, 24-7-703) in order to provide a § 911-9.1 affidavit. Ball v. Jones, 301 Ga. App. 340, 687 S.E.2d 625, 2009 Ga. App. LEXIS 1385 (2009) (decided under former O.C.G.A. § 24-9-67.1). Certified nurse midwife qualified to testify about standard of care for nurses. - In a medical malpractice case dealing with a child’s permanent disabilities, the hospital’s motion for a new trial was improperly granted on the ground that a certified nurse midwife (CNM) could not testify as to the standard of care exercised by the registered professional

Medical Experts (Cont’d) nurses (RN) because the CNM was a member of the same profession as the hospital’s RNs because the Georgia Registered Professional Nurse Practice Act, O.C.G.A. § 43-26-1 et seq., required a CNM to be licensed as a RN, and both RNs and CNMs were regulated by the Georgia Board of Nursing; a review of the regulatory scheme revealed that a CNM was a RN who had advanced training in a specialized area; and the expert affidavit statute listed only nurses, and the statute did not have a separate listing for CNMs. Dempsey v. Gwinnett Hosp. Sys., 330 Ga. App. 469, 765 S.E.2d 525, 2014 Ga. App. LEXIS 814 (2014), cert. denied, No. S15C0696, 2015 Ga. LEXIS 261 (Ga. Apr. 20, 2015). Expert’s allegations of standard of care pertained to conduct beyond the scope of nursing care and was excluded. - In a medical malpractice case against a hospital and emergency room doctor and nurses, expert testimony against the nurses was properly excluded under O.C.G.A. § 24-7-702 because the deviations from the standard of care alleged pertained to conduct that was beyond the scope of nursing care allowed by Georgia law under O.C.G.A. § 43-26-3(8) (defining the practice of nursing). Everson v. Phoebe Sumter Med. Ctr., Inc., 341 Ga. App. 182, 798 S.E.2d 667, 2017 Ga. App. LEXIS 165, rev’d in part, 302 Ga. 364, 806 S.E.2d 533, 2017 Ga. LEXIS 884 (2017). Affidavit of chiropractor not admissible against physical therapist. - Trial court erred by finding that the opinion of the patient’s expert satisfied O.C.G.A. §§ 9-11-9.1 and former 24-967.1(c) (see now O.C.G.A. § 24-7-702), because despite the expert testimony that, as allowed by the expert’s chiropractic license, the expert had practiced physical therapy for a number of years, chiropractic medicine and physical therapy were not the same professions. Bacon County Hosp. & Health Sys. v. Whitley, 319 Ga. App. 545, 737 S.E.2d 328, 2013 Ga. App. LEXIS 10 (2013), cert. denied, No. S13C0788, 2013 Ga. LEXIS 532 (Ga. June

3, 2013) (decided under former O.C.G.A. § 24-9-67.1). Evidence of expert’s personal practices admitted. - In a medical malpractice case, evidence of an expert’s personal practices, unless excludable on other grounds, is admissible both as substantive evidence and to impeach the expert’s opinion as to the applicable standard of care. To the extent Johnson v. Riverdale Anesthesia Assocs., 563 S.E.2d 431 (Ga. 2002), held otherwise, it is overruled. Condra v. Atlanta Orthopaedic Group, P.C., 285 Ga. 667, 681 S.E.2d 152, 2009 Ga. LEXIS 391 (2009) (decided under former O.C.G.A. § 24-9-67.1). Medical causation not within scope of psychological expertise. - It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular art, science or profession as to entitle the witness to be deemed prima facie an expert; therefore, when a neuropsychologist testified to the specific chemical which caused organic brain damage, the trial court did not abuse the court’s discretion in striking portions of the affidavit of the psychologist, because medical causation is not a subject within the scope of psychological expertise. Chandler Exterminators, Inc. v. Morris, 262 Ga. 257, 416 S.E.2d 277, 1992 Ga. LEXIS 501, amended, No. S91G1591 (Ga. 1992) (decided under former O.C.G.A. § 24-9-67). Admission of another doctor’s testimony not required. - In a medical malpractice action, when a doctor was the only expert witness submitted by the suing couple, and the couple did not challenge the trial court’s exclusion of another doctor’s testimony, their argument that said doctor’s testimony should have been admitted as a rebuttal witness was unpersuasive. Thomas v. Peachtree Orthopaedic Clinic, P.C., 290 Ga. App. 869, 660 S.E.2d 758, 2008 Ga. App. LEXIS 291 (2008), cert. denied, No. S08C1373, 2008 Ga. LEXIS 915 (Ga. Oct. 6, 2008) (decided under former O.C.G.A. § 24-9-67.1). Healthcare expert not qualified. - In a medical malpractice and negligence action by an arrestee against a county, jail

medical personnel, a medical lab, and lab personnel, these defendants successfully moved to exclude the testimony of an expert in correctional health on the basis of former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703) because the expert was not qualified to testify as to any matter outside correctional health care - specifically, the standard of care in the fields of internal medicine, infectious disease, or laboratory procedures with regard to the arrestee’s state law claims; furthermore, the expert’s testimony was neither relevant nor reliable under the Daubert analysis, and therefore, it was excluded pursuant to Fed. R. Evid. 702. Dukes v. State, 428 F. Supp. 2d 1298, 2006 U.S. Dist. LEXIS 18201 (N.D. Ga.), aff’d, 212 Fed. Appx. 916, 2006 U.S. App. LEXIS 32150 (11th Cir. 2006) (decided under former O.C.G.A. § 24-9-67.1). Expert retained by the plaintiffs in a medical malpractice action, which was based on the failure to adequately inform a patient of the potential risks and complications connected with a sleep apnea procedure, was not qualified to testify under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703) because the expert had not performed the procedure in question on other patients nor did the expert aver that the expert had obtained informed consents for similar procedures. Nathans v. Diamond, 282 Ga. 804, 654 S.E.2d 121, 2007 Ga. LEXIS 857 (2007) (decided under former O.C.G.A. § 24-9-67.1). Trial court did not abuse the court’s discretion by dismissing the parents’ medical malpractice action because the court correctly found that the purported expert offered by the parents failed to make even one diagnosis of a vascular ring within five years of the date at issue, and had not taught others for at least three of the last five years to diagnose a vascular ring. Spacht v. Troyer, 288 Ga. App. 898, 655 S.E.2d 656, 2007 Ga. App. LEXIS 1279 (2007), cert. denied, No. S08C0714, 2008 Ga. LEXIS 468 (Ga. May 19, 2008), cert. denied, 555 U.S. 1069, 129 S. Ct. 726, 172 L. Ed. 2d 726, 2008 U.S. LEXIS 9039 (2008) (decided under former O.C.G.A. § 24-9-67.1). Trial court properly refused to admit the testimony of a patient’s expert in a

case involving a claim of an unnecessary surgical procedure because the expert, who described the physician’s medical practice as a “family practice”, had no surgical training or expertise. Long v. Natarajan, 291 Ga. App. 814, 662 S.E.2d 876, 2008 Ga. App. LEXIS 653 (2008) (decided under former O.C.G.A. § 24-9-67.1). In a malpractice and wrongful death case filed against a surgeon and an anesthesiologist, as the expert retained by the decedent’s spouse did not teach or practice in the area of post-surgical airway management with sufficient frequency to establish the appropriate level of knowledge to meet the criteria of former O.C.G.A. § 24-9-67.1(c)(2) (see now O.C.G.A. §§ 24-7-702, 24-7-703), and lacked training in anesthesiology, the expert’s opinion was properly excluded. Dawson v. Leder, 294 Ga. App. 717, 669 S.E.2d 720, 2008 Ga. App. LEXIS 1283 (2008) (decided under former O.C.G.A. § 24-9-67.1). Trial court did not err in determining that an anesthesiologist did not meet the expert-witness qualification requirements set forth in former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703) because the anesthesiologist did not meet the licensing requirement for expert witnesses, former § 24-9-67.1(c)(1). Although the anesthesiologist’s amended affidavit in support of a medical malpractice complaint indicated that the anesthesiologist held a medical license from Pennsylvania on the date of the alleged negligent act, there was no evidence that the anesthesiologist was practicing in that state, and instead, the anesthesiologist’s testimony indicated that the anesthesiologist was practicing medicine in Australia; in order to comply with the licensing requirement of former § 24-7-67.1(c)(1), an expert in a professional malpractice action must be licensed and practicing (or teaching) in one of the states of the United States at the time the alleged negligent act occurred. Craigo v. Azizi, 301 Ga. App. 181, 687 S.E.2d 198, 2009 Ga. App. LEXIS 1338 (2009) (decided under former O.C.G.A. § 24-9-67.1). Estate administrator’s federal Tort Claims Act medical malpractice claims against employees of a VA medical center failed as the testimony of the administra-

Medical Experts (Cont’d) tor’s only expert was properly excluded; Georgia’s evidentiary rules for a physician’s expert testimony applied, and the administrator’s expert was not qualified to testify because of the expert’s lack of expertise as a vascular surgeon or in broadly treating a patient suffering from critical ischemia. Dutton v. United States, 621 Fed. Appx. 962, 2015 U.S. App. LEXIS 10108 (11th Cir. 2015). Active practice. - Trial court abused the court’s discretion to the extent the court determined that an anesthesiologist did not meet the “active practice” requirements of former O.C.G.A. § 24-967.1(c)(2)(A) (see now O.C.G.A. §§ 24-7702, 24-7-703) because once the anesthesiologist received a medical degree and embarked upon a residency in anesthesiology, the anesthesiologist was engaged in the “active practice of such area of specialty” within the meaning of former § 24-9-67.1(c)(2)(A); years spent as a resident physician can count as years of “active practice” for purposes of former § 249-67.1(c)(2)(A). Craigo v. Azizi, 301 Ga. App. 181, 687 S.E.2d 198, 2009 Ga. App. LEXIS 1338 (2009) (decided under former O.C.G.A. § 24-9-67.1). Physician’s affidavit. - Fact that a medical expert was not licensed as a medical doctor when the expert executed an expert affidavit to accompany a medical malpractice complaint, pursuant to O.C.G.A. § 9-11-9.1, did not affect the validity of the affidavit or require dismissal of the complaint as licensure was not a required element of such an affidavit under that statutory section or under case law; further, former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703), assuming it was applicable to the circumstances, only required that the expert was licensed at the time of the medical negligence, which was the case for the instant expert. Tenet Healthcare Corp. v. Gilbert, 277 Ga. App. 895, 627 S.E.2d 821, 2006 Ga. App. LEXIS 167 (2006), cert. denied, No. S06C1197, 2006 Ga. LEXIS 543 (Ga. July 13, 2006), overruled in part, Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314, 765 S.E.2d 413, 2014 Ga. App. LEXIS 717 (2014) (decided under former O.C.G.A. § 24-9-67.1).

In a professional malpractice case brought by a married couple, an expert’s original affidavit was insufficient under O.C.G.A. §§ 9-11-9.1 and former 24-967.1 (see now O.C.G.A. §§ 24-7-702, 24-7703), which applied retroactively. Although the expert avowed therein that the expert had been licensed to practice medicine since 1974, the affidavit contained nothing concerning the expert’s recent or continuing experience as an orthopedist. Cogland v. Hosp. Auth., 290 Ga. App. 73, 658 S.E.2d 769, 2008 Ga. App. LEXIS 75 (2008) (decided under former O.C.G.A. § 24-9-67.1). Doctor’s affidavit complied with former O.C.G.A. § 24-9-67.1(c) (see now O.C.G.A. §§ 24-7-702, 24-7-703) because the plain language of the former statute did not require a license during three of the last five years of practice, but experience in the area of the alleged malpractice and a license at the time of the alleged malpractice. Emory Adventist, Inc. v. Hunter, 301 Ga. App. 215, 687 S.E.2d 267, 2009 Ga. App. LEXIS 1364 (2009) (decided under former O.C.G.A. § 24-9-67.1). Dismissal of medical malpractice suit based on affidavit. - Trial court erred in granting a hospital’s motion to dismiss a survivor’s wrongful death action based on O.C.G.A. § 9-11-9.1(e) because a nurse’s affidavit that allegedly failed to comply with former O.C.G.A. § 24-967.1(c)(2) and (e) (see now O.C.G.A. §§ 247-702, 24-7-703), because the trial court did not consider the survivor’s other affidavit submitted: an unchallenged affidavit from a medical doctor. Piscitelli v. Hosp. Auth. of Valdosta & Lowndes County, 302 Ga. App. 746, 691 S.E.2d 615, 2010 Ga. App. LEXIS 219 (2010) (decided under former O.C.G.A. § 24-9-67.1). Treating physician’s testimony sufficient. - In a Federal Employers’ Liability Act action, testimony of an employee’s treating physician was not insufficient under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703) because after diagnosing the employee with hepatitis related to chemical exposure, the physician reviewed reports of, inter alia, a toxicologist that the chemical in a leaking train car was hydrogen sulfide and opined as to causation; the physician’s opinion

was not merely based on the temporal proximity of the chemical exposure to the onset of the employee’s symptoms. CSX Transp., Inc. v. McDowell, 294 Ga. App. 871, 670 S.E.2d 543, 2008 Ga. App. LEXIS 1341 (2008) (decided under former O.C.G.A. § 24-9-67.1). Qualification of nurses as expert witnesses. - Registered nurses and licensed practical nurses who cared for a decedent after the decedent’s diagnosis with Alzheimer’s disease did not lack qualifications to testify as experts about the decedent’s capacity to execute a deed because the law did not require that only physicians be allowed to give testimony regarding a medical issue, but permitted others with certain training and experience to testify on issues within the scope of their expertise, and a licensed practical nurse or registered nurse was qualified to testify as an expert witness within the areas of the nurse’s expertise; as to any failure to qualify the witnesses as experts, the question of whether a person possessed the qualifications of an expert witness rested entirely in the sound discretion of the trial court. Smith v. Smith, 281 Ga. 380, 637 S.E.2d 662, 2006 Ga. LEXIS 964 (2006) (decided under former O.C.G.A. § 24-9-67.1). In a medical malpractice action, given the relevant past experience of the patient’s expert as a nurse, and the expert’s familiarity with the degree and skills required of nurses and other medical staff in giving intermuscular injections, the expert was sufficiently qualified to render an expert opinion in the case. Allen v. Family Med. Ctr., P.C., 287 Ga. App. 522, 652 S.E.2d 173, 2007 Ga. App. LEXIS 1014 (2007) (decided under former O.C.G.A. § 24-9-67.1). Complaint alleged that a nurse committed malpractice by not accurately triaging a patient. As the patient’s expert nurse had ongoing practical experience in patient triage, and years of practical and teaching experience in supervising patient care, the expert’s affidavit filed under O.C.G.A. § 9-11-9.1 was legally sufficient even though the expert had not performed emergency room triage. Houston v. Phoebe Putney Mem. Hosp., Inc., 295 Ga. App. 674, 673 S.E.2d 54, 2009 Ga.

App. LEXIS 419 (2009) (decided under former O.C.G.A. § 24-9-67.1). In a medical malpractice action brought by a patient against a hospital and an employee of the hospital, the patient’s expert nurse was held to be indisputably qualified under former O.C.G.A. § 24-967.1 (see now O.C.G.A. §§ 24-7-702, 24-7703) based on the nurse actively and regularly practicing as a licensed nurse on a full-time basis in supervising and directly performing nursing services and being a faculty member at two educational institutions accredited in the teaching of the nursing profession. Lee v. Phoebe Putney Mem. Hosp., Inc., 297 Ga. App. 692, 678 S.E.2d 340, 2009 Ga. App. LEXIS 520 (2009) (decided under former O.C.G.A. § 24-9-67.1). In a case involving a patient who fell at the doctor’s office while a nurse was weighing the patient, a trial court abused the court’s discretion in concluding that a nursing expert was not qualified to testify under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703). The proper area of specialty was not weighing patients, in which the nurse expert had little experience, but managing patient safety while moving or directing patients, in which the nurse expert had sufficient experience at a surgical clinic. Anderson v. Mt. Mgmt. Servs., 306 Ga. App. 412, 702 S.E.2d 462, 2010 Ga. App. LEXIS 952 (2010) (decided under former O.C.G.A. § 24-9-67.1). Because the medical center defendants’ motion to dismiss did not allege, with specificity, that the nurse was not qualified to give the expert affidavit attached to the patient’s complaint alleging professional negligence, the trial court erred in granting the medical center defendants’ motion to dismiss on that basis. Cantrell v. AU Med. Ctr., 358 Ga. App. 41, 853 S.E.2d 137, 2020 Ga. App. LEXIS 690 (2020), cert. denied, No. S21C0663, 2021 Ga. LEXIS 543 (Ga. July 7, 2021). Expert in medical malpractice properly qualified. - Trial court did not abuse it’s discretion in denying the construction company’s motion to exclude opinion evidence on the basis that the homeowners’ expert misread the construction company’s expert report as any such

Medical Experts (Cont’d) contentions went to the weight, rather than the admissibility of the evidence. Wilson v. Redmond Constr., 359 Ga. App. 814, 860 S.E.2d 118, 2021 Ga. App. LEXIS 290 (2021). Medical malpractice expert testimony sufficient to avoid directed verdict. - Patient who was allergic to latex alleged a hospital’s negligent use of a latex catheter caused her to develop interstitial cystitis (IC). Though the patient’s medical expert admitted that the causes of IC were unknown, and that no research linked IC to latex allergies, the expert’s testimony that allergic reactions could trigger IC, and did so in the patient’s case, was sufficient evidence of medical causation to justify denying the hospital’s motion for judgment notwithstanding the verdict. EHCA Dunwoody, LLC v. Daniel, 277 Ga. App. 783, 627 S.E.2d 830, 2006 Ga. App. LEXIS 204 (2006), cert. denied, No. S06C1165, 2006 Ga. LEXIS 374 (Ga. May 18, 2006) (decided under former O.C.G.A. § 24-967.1). In a medical malpractice action, the trial court properly denied a neurosurgeon’s motion to dismiss the action, on grounds that the affidavit required under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703) was from an orthopedist and not a fellow neurosurgeon, as the statutory area of practice in which the opinion was to be given was dictated not by the apparent expertise of the treating physician, but rather by the allegations of the complaint concerning the plaintiff’s injury. Abramson v. Williams, 281 Ga. App. 617, 636 S.E.2d 765, 2006 Ga. App. LEXIS 1183 (2006), cert. denied, No. S07C0226, 2007 Ga. LEXIS 91 (Ga. Jan. 8, 2007) (decided under former O.C.G.A. § 24-9-67.1). In a medical malpractice action involving alleged nerve damage to a child during delivery, a trial court properly directed a verdict in favor of the doctor upon determining that the suing parent failed to provide causation evidence as the parent’s expert failed to rule in a certain possibility as to the cause of the injury at issue and, instead, assumed a cause of injury, which was unsupported by the evidence.

Hawkins v. OB-GYN Assocs., P.A., 290 Ga. App. 892, 660 S.E.2d 835, 2008 Ga. App. LEXIS 389 (2008), cert. denied, No. S08C1440, 2008 Ga. LEXIS 713 (Ga. Sept. 8, 2008) (decided under former O.C.G.A. § 24-9-67.1). In a medical malpractice case in which the physician mistakenly placed a catheter in the patient’s femoral artery instead of the femoral vein ultimately resulting in an amputation of the patient’s leg, a directed verdict in favor of the physician and the employer was improperly granted because the record contained evidence regarding the standard of care for the placement of a femoral catheter, and the opinions of the patient’s expert witness as to how the physician breached that standard; and neither the trial court nor the physician or the employer cited any authority in support of the proposition that a trial court could selectively disregard unobjected to evidence when considering a motion for directed verdict. Lockhart v. Bloom, 360 Ga. App. 741, 859 S.E.2d 918, 2021 Ga. App. LEXIS 382 (2021). Emergency room doctor qualified as expert. - In a patient’s suit against a doctor, the doctor was qualified to testify as to the doctor’s opinion on the standard of care and causation in the case; although the doctor was not board certified in any field of medicine and had not instructed in the area of emergency medicine, the doctor met the competency standard set forth in former O.C.G.A. § 24-9-67.1(c)(2)(A) (see now O.C.G.A. §§ 24-7-702, 24-7-703) because the doctor was licensed to practice medicine for 26 years, the doctor practiced as an emergency room physician for 19 years, and the doctor was regularly engaged in the practice of emergency medicine during five of the five years preceding the doctor’s treatment of the patient. Cruickshank v. Elbert County, No. 3:06-CV-101, 2008 U.S. Dist. LEXIS 40221 (M.D. Ga. May 19, 2008) (decided under former O.C.G.A. § 24-9-67.1). Surgical expert. - Trial court did not abuse the court’s discretion in a medical malpractice action by denying the hospital defendant’s motion to exclude the expert opinions of one of the plaintiffs’ experts because the expert’s causation opinion

that the patient plaintiff would have made a candidate for immediate surgical intervention rather than surgery down the road was reliable and, therefore, admissible. Hosp. Auth. v. Fender, 342 Ga. App. 13, 802 S.E.2d 346, 2017 Ga. App. LEXIS 309 (2017), cert. denied, No. S17C1924, 2017 Ga. LEXIS 990 (Ga. Dec. 11, 2017), cert. denied, No. S17C1923, 2017 Ga. LEXIS 992 (Ga. Dec. 11, 2017), overruled in part, Quynn v. Hulsey, 310 Ga. 473, 850 S.E.2d 725, 2020 Ga. LEXIS 761 (2020), overruled in part as stated in Miller v. Polk, 363 Ga. App. 771, 872 S.E.2d 754, 2022 Ga. App. LEXIS 218 (2022). Active practice of medicine within last three years. - When a couple who filed a medical malpractice case did not show that their experts had actual professional knowledge and experience through active practice or by teaching during at least three of the last five years, the trial court properly held under O.C.G.A. §§ 911-9.1 and former 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703) that the experts were not qualified to give an opinion and dismissed the case. Akers v. Elsey, 294 Ga. App. 359, 670 S.E.2d 142, 2008 Ga. App. LEXIS 1191 (2008) (decided under former O.C.G.A. § 24-9-67.1). Police officer qualified as expert in wreck reconstruction. - Based on the police officer’s extensive experience and training and the fact that the officer was the lead investigator in reconstructing the wreck, the trial court did not manifestly abuse its discretion in finding that the officer was qualified to give the officer’s conclusion. Golden Peanut Co. v. Miller, 363 Ga. App. 384, 870 S.E.2d 511, 2022 Ga. App. LEXIS 116 (2022). Expert qualified in journalism. - Trial court properly qualified the state’s witness as an expert in journalism and First Amendment law, and specifically open records laws given that the expert had an undergraduate degree in journalism, a law degree, and a Ph.D. in journalism, and that the criminal charges against the defendant related to the trade of journalism. Garland v. State, 361 Ga. App. 724, 865 S.E.2d 533, 2021 Ga. App. LEXIS 540 (2021). Unidentified witness testifying as expert. - In a personal injury and loss of consortium action, the trial court did not

err by allowing a business to call a witness who had not been identified as an expert as: (1) the proper remedy for the erroneous admission of evidence was to request a continuance or a mistrial, neither of which the injured invitee did; (2) the invitee did not dispute that the invitee received, before trial, the substance of the witness’s expected testimony, along with a curriculum vitae, but only argued that the business failed to amend the interrogatory answers; and (3) the invitee failed to object either when the business called the witness to testify, or when the business tendered the witness as an expert. Magill v. Edd Kirby Chevrolet, Inc., 277 Ga. App. 619, 627 S.E.2d 207, 2006 Ga. App. LEXIS 168 (2006) (decided under former O.C.G.A. § 24-9-67.1). Lender’s appraiser’s opinion as to foreclosed property’s true market value at the time of foreclosure was properly admitted under former O.C.G.A. § 24-9-67.1(b) (see now O.C.G.A. §§ 24-7702, 24-7-703). The lender’s expert’s appraisal was based upon extensive facts and careful analysis taking into account the potential for future recovery of a down real estate market by the discounted flow method, which the borrower conceded was reliable. Blue Marlin Dev., LLC v. Branch Banking & Trust Co., 302 Ga. App. 120, 690 S.E.2d 252, 2010 Ga. App. LEXIS 52 (2010) (decided under former O.C.G.A. § 24-9-67.1). Expert on steel and polymer vaults or soil conditions. - There was no abuse of discretion in allowing a witness to testify as an expert on steel and polymer vaults or soil conditions in an action seeking a permanent injunction against a cemetery group because the cemetery group failed to show that the testimony was not the product of reliable principles and methods. Savannah Cemetery Group, Inc. v. DePue-Wilbert Vault Co., 307 Ga. App. 206, 704 S.E.2d 858, 2010 Ga. App. LEXIS 1126 (2010) (decided under former O.C.G.A. § 24-9-67.1). Testimony from children’s therapists. - In a visitation dispute, it was not an abuse of discretion to allow the subject children’s therapist to testify as an expert in child psychology because any dispute as to the witness’s qualifications was prop-

Medical Experts (Cont’d) erly explored on cross-examination and went to the weight of the witness’s testimony, rather than the admissibility of that testimony. Gottschalk v. Gottschalk, 311 Ga. App. 304, 715 S.E.2d 715, 2011 Ga. App. LEXIS 665 (2011) (decided under former O.C.G.A. § 24-9-67.1). Expert in market value for foreclosure sale. - Trial court did not abuse the court’s discretion by admitting the expert testimony proffered by the mortgagee because it was sufficient; competent evidence supported the finding that the foreclosure sale should be confirmed and provided proof of the true market value as of the date of the foreclosure sale. Powder Springs Holdings, LLC v. RL BB ACQ II-GA PSH, LLC, 325 Ga. App. 694, 754 S.E.2d 655, 2014 Ga. App. LEXIS 54 (2014). Appraisal expert’s testimony as to the value of foreclosed property at a confirmation proceeding did not violate former O.C.G.A. § 24-9-67.1(b) because the witness was certified as an appraiser in Georgia and had extensive experience, and the expert’s conclusions as to the lot purchase agreement and buildability of certain lots were subject to cross-examination. The trial court, sitting without a jury, was not required to undertake a Daubert analysis of the expert’s testimony. Harper v. Ameris Bank, 326 Ga. App. 67, 755 S.E.2d 872, 2014 Ga. App. LEXIS 122 (2014) (decided under former O.C.G.A.§ 24-9-67.1). Human factors theories expert. - In a suit arising out of a collision at a highway construction site, the trial court did not err in allowing the plaintiffs’ expert testimony on human factors theories, which had been subject to publishing and peer review; however, the expert was not qualified to give an opinion regarding the placement of traffic control signs. Ga. DOT v. Owens, 330 Ga. App. 123, 766 S.E.2d 569, 2014 Ga. App. LEXIS 805 (2014). Trial court did not err by admitting the testimony of the plaintiffs’ expert in the wrongful death action because the human factors engineer was qualified to offer the opinion that the reconstruction differed from the conditions that the driver of the

car in the accident experienced because the test drivers knew and expected the bump in the roadway, as the engineer was an industrial and mechanical engineer and expert in systems engineering with specific expertise in human factors engineering, and the engineer had studied and evaluated factors that affect human beings, including drivers. DOT v. Delor, 351 Ga. App. 414, 830 S.E.2d 519, 2019 Ga. App. LEXIS 411 (2019), cert. denied, No. S20C0086, 2020 Ga. LEXIS 260 (Ga. Mar. 26, 2020), overruled in part, Driskell v. Dougherty County, 363 Ga. App. 481, 871 S.E.2d 283, 2022 Ga. App. LEXIS 164 (2022). Real estate development consultant allowed to testify. - Expert testimony of a real estate development consultant regarding whether it was possible for the property owner to subdivide the property was properly allowed as the owner asserted that it was impossible for the owner to perform that task in a timely manner because of the Urban Design Commission’s involvement, but the consultant’s testimony was relevant to show that the property was not under the jurisdiction of the Commission; and that, under the city’s subdivision ordinance, there were no restrictions that would prevent the property from being subdivided. Allen v. CFYC Construction, LLC, 354 Ga. App. 890, 842 S.E.2d 297, 2020 Ga. App. LEXIS 243 (2020). Testimony about bottoming out of car. - Trial court did not err by admitting the testimony of the plaintiffs’ expert in the wrongful death action because the challenge went to the weight and credibility of the expert’s opinion and not the opinion’s admissibility, as the expert conceded that the correction changed the expert’s opinion regarding whether the car in which the decedents were traveling would have “bottomed out” if the car had been traveling at a lower speed, but it did not change the expert’s opinion about whether the car bottomed out at its speed at the time of the accident. DOT v. Delor, 351 Ga. App. 414, 830 S.E.2d 519, 2019 Ga. App. LEXIS 411 (2019), cert. denied, No. S20C0086, 2020 Ga. LEXIS 260 (Ga. Mar. 26, 2020), overruled in part, Driskell v. Dougherty County, 363 Ga. App. 481,

871 S.E.2d 283, 2022 Ga. App. LEXIS 164 (2022). Caseworker allowed to testify. - In a termination of parental rights proceeding, pretermitting whether a case worker was qualified to give an expert opinion about the adverse effects of long-term foster care on the mother’s twin children, because the mother failed to show prejudice in light of the other evidence supporting the termination of parental rights, the juvenile court did not err in allowing the case worker’s testimony. In the Interest of T.J., 281 Ga. App. 673, 637 S.E.2d 75, 2006 Ga. App. LEXIS 1198 (2006) (decided under former O.C.G.A. § 24-9-67.1). Elevator inspector as expert. - In a premises liability case involving an elevator that stopped above landing level, a person who had worked for 31 years for an elevator company, with responsibilities including maintenance, repair, and upgrading of existing elevators for customers, and who was certified as a qualified elevator inspector, was properly accepted as an expert. Brady v. Elevator Specialists, Inc., 287 Ga. App. 304, 653 S.E.2d 59, 2007 Ga. App. LEXIS 945 (2007) (decided under former O.C.G.A. § 24-9-67.1). Qualification as board certified doctor. - During a malpractice case alleging that a patient’s doctor failed to timely examine and treat the patient after the patient broke a hip at a long-term care facility, the trial court did not abuse the court’s discretion in finding that the patient’s expert witness (who, like the doctor, was board certified in internal medicine) was qualified under former O.C.G.A. § 24-9-67.1(c)(2) (see now O.C.G.A. §§ 24-7-702, 24-7-703). The witness saw about six patients per week, including patients who resided in long-term-care facilities; the fact that the witness had not ordered an x-ray or CT-scan or admitted anyone to the hospital in the past five years did not disqualify the witness as an expert. Carter v. Smith, 294 Ga. App. 590, 669 S.E.2d 425, 2008 Ga. App. LEXIS 1163 (2008), cert. denied, No. S09C0463, 2009 Ga. LEXIS 194 (Ga. Feb. 23, 2009) (decided under former O.C.G.A. § 24-967.1). Qualification of engineering expert. - Given an expert witness’s qualifications, including the expert’s advanced

degrees in civil engineering and public administration, professional engineer’s license, certification as a professional traffic operations engineer, fifteen years experience working at the DOT, and eight years experience at the local government level, and the expert’s testimony based on personal knowledge of the DOT’s manuals and inspection policies, a trial court did not err in allowing the witness to give an opinion of whether the DOT had complied with its storm inspection policy. Ga. DOT v. Miller, 300 Ga. App. 857, 686 S.E.2d 455, 2009 Ga. App. LEXIS 1293 (2009) (decided under former O.C.G.A. § 24-967.1). In a property owner’s action for trespass and nuisance, the trial court did not abuse the court’s discretion by allowing the owner’s expert witness to testify because the expert (1) relied on sufficient facts and data; (2) was a civil engineer with a doctorate in engineering science and mechanics; and (3) had consulted and testified as an expert in numerous water intrusion/ infiltration and related cases; although the expert deposed that the expert’s opinion was a theory that was impossible to prove since the expert could not repeat the owner’s initial water leak, the expert had factual information showing that the owner had not had an excessive rainwater problem before a sprinkler vault leak and that chlorinated water flowed to the owner’s property in large volumes and could have done so for months, and the expert had factual information that the owner experienced excessive flooding during rains thereafter. Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62, 2009 Ga. App. LEXIS 1388 (2009), cert. denied, No. S10C0669, 2010 Ga. LEXIS 468 (Ga. May 17, 2010) (decided under former O.C.G.A. § 24-9-67.1). Business valuation expert should have testified. - In a negligence and breach of trust action, the special master erred by excluding the expert testimony regarding the value of the plaintiff because the expert undertook the exact type of analysis as all other valuation specialists utilize in valuing a business enterprise when public information is not available, and the opinion was relevant for the jury to determine, in conjunction with

Medical Experts (Cont’d) other testimony and evidence, the amount of damages that the defendant’s alleged actions may have caused, which necessarily required consideration of opinion evidence as to the value of the business. Levine v. SunTrust Robinson Humphrey, 321 Ga. App. 268, 740 S.E.2d 672, 2013 Ga. App. LEXIS 344 (2013), cert. denied, No. S13C1255, 2013 Ga. LEXIS 774 (Ga. Sept. 23, 2013) (decided under former O.C.G.A. § 24-9-67.1). Expert testimony as to timber value. - County board of equalization’s tax assessment of a 250-acre tract of timberland was affirmed as the trial court did not err in failing to exclude estimates of timber value proffered by the board’s expert as the appellants failed to show that the testimony was wholly speculative or conjectural, or that it was not the product of reliable principles and methods. White Horse Partners LLLP v. Monroe County Bd. of Tax Assessors, 348 Ga. App. 603, 824 S.E.2d 57, 2019 Ga. App. LEXIS 50 (2019). 3. Other Specific Experts Expert’s testimony on legal causation in mesothelioma case was improperly allowed. - After the independent contractor was diagnosed with mesothelioma, and the plaintiffs sued a textile manufacturer claiming that the manufacturer negligently exposed the contractor to asbestos and caused the contractor’s mesothelioma, the plaintiffs’ expert witness testimony was improperly admitted because the expert’s testimony improperly told the jury that it was unnecessary to resolve the extent of asbestos exposure at the manufacturer’s facility and that any asbestos exposure was a contributing cause of the mesothelioma as the plaintiffs had to show that exposure to asbestos at the facility made a meaningful contribution to the contractor’s mesothelioma, and a de minimis contribution was not sufficient to establish legal causation. Scapa Dryer Fabrics, Inc. v. Knight, 299 Ga. 286, 788 S.E.2d 421, 2016 Ga. LEXIS 445 (2016) (decided under former O.C.G.A. § 24-9-67.1(b)). Expert on vehicle value. - Trial court did not err in excluding expert tes-

timony of the value of a vehicle in the vehicle’s defective condition on the date of sale because there was no evidence that the expert witness’s method was relied upon more widely in the automotive field, nor of the method’s known rate of error, nor whether it had been reviewed by qualified experts other than its creators. Moran v. Kia Motors Am., Inc., 276 Ga. App. 96, 622 S.E.2d 439, 2005 Ga. App. LEXIS 1175 (2005), cert. denied, No. S06C0456, 2006 Ga. LEXIS 229 (Ga. Mar. 27, 2006) (decided under former O.C.G.A. § 24-9-67.1). Economist. - In a wrongful interference with business relations and slander suit, a trial court properly excluded testimony of plaintiff’s expert economist, which the plaintiff claimed would show plaintiff’s financial injury as to plaintiff’s tortious interference claim as the expert’s reliance on the partial sales history of a single agent, along with a letter referencing annualized premiums from the sale of only certain life insurance policies and unsupported representations by another agent, did not provide an adequate basis for the expert’s opinion. Am. Southern Ins. Group, Inc. v. Goldstein, 291 Ga. App. 1, 660 S.E.2d 810, 2008 Ga. App. LEXIS 386 (2008), cert. denied, No. S08C1555, 2008 Ga. LEXIS 680 (Ga. Sept. 8, 2008) (decided under former O.C.G.A. § 24-9-67.1). Toxicologist. - In a will contest, the trial court did not abuse the court’s discretion in limiting testimony from the caveatrix’s expert toxicologist as to whether a person’s functioning level could be determined by that person’s responses to general questions as the trial court found that the expert’s opinion was based on generalized statistics which would have been of dubious help to the jury. Caswell v. Caswell, 285 Ga. 277, 675 S.E.2d 19, 2009 Ga. LEXIS 70 (2009) (decided under former O.C.G.A. § 24-9-67.1). Chemistry expert. - In a customer’s personal injury action against a stylist and a hair salon alleging chemical burns, a motion in limine was properly granted under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702, 24-7-703) to exclude the customer’s expert in chemistry because the expert’s testing of hair products and the product’s reaction to

heat did not exactly replicate the conditions under which the incident occurred; the expert used a peroxide product that was not applied to the customer’s hair and used a different type of heat source. Giannotti v. Beleza Hair Salon, Inc., 296 Ga. App. 636, 675 S.E.2d 544, 2009 Ga. App. LEXIS 301 (2009) (decided under former O.C.G.A. § 24-9-67.1). Attorney as expert on title law and ownership. - Whether or not an attorney at law may qualify and testify as an expert witness as to what the law is and who has title and owns property as found by the attorney from examination of title records was a part of the ultimate fact to be decided by the jury. Bishop v. Lamkin, 221 Ga. 687, 146 S.E.2d 772, 1966 Ga. LEXIS 669 (1966) (decided under former Code 1933, § 38-1710). Expert on foreseeability of murder. - Trial court did not err in refusing to permit a mother’s expert to opine that a son’s murder was foreseeable because it was within the discretion of the trial court to determine that no expert testimony on the question of foreseeability was required; the jury in this case, having heard evidence of numerous prior criminal acts that occurred in or around the complex, was capable of deciding the question of foreseeability without expert testimony on the ultimate issue. Raines v. Maughan, 312 Ga. App. 303, 718 S.E.2d 135, 2011 Ga. App. LEXIS 945 (2011), cert. denied, No. S12C0436, 2012 Ga. LEXIS 270 (Ga. Mar. 5, 2012) (decided under former O.C.G.A. § 24-9-67). Product liability action. - Trial court did not abuse the court’s discretion in allowing an expert witness to testify, pursuant to former O.C.G.A. § 24-9-67, in a truck owner’s products liability action against a truck modifying company regarding an allegedly defective switch that was installed on the floorboard of the truck, as the expert testified that the expert had some knowledge of electrical systems, vehicle wiring, and in investigating electrical fires; accordingly, the expert’s opinion that the origin of the fire was electrical and the expert’s explanation as to the meaning of a flammability rating and the expert’s testimony thereon was properly admitted. Cottrell, Inc. v.

Williams, 266 Ga. App. 357, 596 S.E.2d 789, 2004 Ga. App. LEXIS 368 (2004) (decided under former O.C.G.A. § 24-967). Airport operations manager failed to demonstrate qualifications as an expert witness to express an opinion regarding the acceptable and safe number of pounds of force of closing pressure for automatic doors on shuttle trains, or to present a factual predicate for a lay opinion. Saltis v. Benz, 243 Ga. App. 603, 533 S.E.2d 772, 2000 Ga. App. LEXIS 500 (2000) (decided under former O.C.G.A. § 24-9-67). Electrical engineer. - When a witness was an electrical engineer of 31 years experience, and the engineer’s opinions were based on proven facts, the opinions were admissible. Little v. Georgia Power Co., 205 Ga. 51, 52 S.E.2d 322, 1949 Ga. LEXIS 520 (1949) (decided under former Code 1933, § 38-1710). Building inspector who held a license in the inspector’s individual name at the time of conducting an inspection qualified as an expert; the fact that the inspector was unaware that the inspector was also required to get a license in the name under which the inspector conducted business did not prevent the inspector’s qualification as an expert. Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 542 S.E.2d 151, 2000 Ga. App. LEXIS 1339 (2000) (decided under former O.C.G.A. § 24-9-67). A Ph. D. in entomology was not required to have a pest control operator’s license before being qualified to testify in an action arising from termite infestation of property. Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 521 S.E.2d 600 (decided under former O.C.G.A. § 24-9-67). Expert’s generalizations on adolescents inadmissible. - Trial court properly granted summary judgment in favor of a drug store in a suit brought by the parents of a teenager who died while huffing butane for wrongful death and in a suit brought by the parents of two other teens who were injured when: the teens assumed the risk; the expert’s affidavit presented by the parents was not based on personal knowledge from interviewing the teens, and was conclusory and specula-

Other Specific Experts (Cont’d) tive; to the extent that the expert’s affidavit fit within former O.C.G.A. § 24-9-67, the expert’s generalizations about the beliefs of adolescents about death or the propensity of adolescents to exercise poor judgment and behave irresponsibly were not appropriate yardsticks for assessing the minors’ knowledge of the risk; the parents’ claim that the drug store knew that the teens were going to misuse the butane was based on hearsay; and the parents’ public policy claims were rejected as O.C.G.A. § 16-13-90 created a list of dangerous substances not to be sold to minors, butane was not on the list, and any change in the law had to be legislatively enacted. Garner v. Rite Aid of Ga., Inc., 265 Ga. App. 737, 595 S.E.2d 582, 2004 Ga. App. LEXIS 243 (2004) (decided under former O.C.G.A. § 24-9-67). Expert on ordinary care in premises inadmissible. - In a negligence and premises liability action, an administrator’s expert affidavit regarding the foreseeability of a shooting of the decedent, a licensee, on the premises was inadmissible as there was no need for expert testimony to determine whether ordinary care was exercised in running the premises’ business; moreover, because the evidence showed that there had never been an accidental shooting of one hunter by another on the premises, no basis existed for holding that the owners or operator should have foreseen that a third party would come onto the property and illegally shoot at a target which the third party could not identify. Hadden v. ARE Props., LLC, 280 Ga. App. 314, 633 S.E.2d 667, 2006 Ga. App. LEXIS 849 (2006) (decided under former O.C.G.A. § 24-9-67). Defendant’s expert on alco-sensor inadmissible. - Trial court did not abuse the court’s discretion in refusing to admit the testimony of a defendant’s expert because the mistake charged to an arresting officer in administering an alcosensor test too soon after the officer first stopped the defendant would not have affected the test result to which the arresting officer testified since the defendant admitted that defendant had been drinking, and the trial court admitted

only the officer’s testimony that the alcosensor produced a positive result. Oliver v. State, 294 Ga. App. 299, 669 S.E.2d 162, 2008 Ga. App. LEXIS 1225 (2008) (decided under former O.C.G.A. § 24-9-67). Testimony by examining psychologist about parenting. - Juvenile court properly allowed expert to testify about mother’s mental health status and its effects on the mother’s parenting abilities even though the testing occurred two years prior to the hearing. In the Interest of A.K., 272 Ga. App. 429, 612 S.E.2d 581, 2005 Ga. App. LEXIS 297 (2005) (decided under former O.C.G.A. § 24-9-67). Testimony on psychiatric disorders. - Testimony of experts that plaintiff suffered from recognized psychiatric disorders that caused the plaintiff to have or complain of physical symptoms out of proportion to any injuries the plaintiff may have experienced did not go solely to the credibility of the plaintiff and was admissible. Rose v. Figgie Int’l, Inc., 229 Ga. App. 848, 495 S.E.2d 77 (decided under former O.C.G.A. § 24-9-67). Expert testimony as to the practices of an industry is admissible. Dan Gurney Indus., Inc. v. Southeastern Wheels, Inc., 168 Ga. App. 504, 308 S.E.2d 637, 1983 Ga. App. LEXIS 2829 (1983) (decided under former O.C.G.A. § 24-967). Expert could rely on the Safety Code for Elevators and Escalators in forming the expert’s opinion. Millar Elevator Serv. Co. v. O’Shields, 222 Ga. App. 456, 475 S.E.2d 188 (decided under former O.C.G.A. § 249-67). In an action for libel, there was no error in the admission of the testimony of a journalism professor who testified as to certain generally recognized minimum standards in journalism and then stated the professor’s opinion that the conduct described in a hypothetical question did not meet these standards. News Publishing Co. v. DeBerry, 171 Ga. App. 787, 321 S.E.2d 112, 1984 Ga. App. LEXIS 3006 (1984), cert. denied, 471 U.S. 1053, 105 S. Ct. 2112, 85 L. Ed. 2d 477, 1985 U.S. LEXIS 2766 (1985) (decided under former O.C.G.A. § 24-9-67). Reconstruction of accident. - Expert accident reconstructionist was not

qualified to render an opinion as to which of two impacts caused plaintiff’s injury. Johnson v. Knebel, 267 Ga. 853, 485 S.E.2d 451 (decided under former O.C.G.A. § 24-9-67). Highway signal engineer. - Trial court did not abuse court’s discretion in permitting a Department of Transportation engineer, qualified as a signal engineer, to testify whether the state was negligent in designing an intersection and signal timing at the intersection. Fouts v. Builders Transp., Inc., 222 Ga. App. 568, 474 S.E.2d 746 (decided under former O.C.G.A. § 24-9-67). Legal malpractice and the standard of care. - Trial court did not abuse the court’s discretion in granting a motion in limine in a legal malpractice action to exclude a purported expert witness on the standard of care, under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7702, 24-7-703), because the witness, although a member of the state bar, worked as a merchant for a family owned business and was not then engaged in any activities that constituted practicing law in Georgia under O.C.G.A. § 15-19-50. Further, the trial court’s misguided analogy to a medical malpractice expert under former § 24-9-67.1(c)(2)(D) did not result in reversible error. Wilson v. McNeely, 307 Ga. App. 876, 705 S.E.2d 874, 2011 Ga. App. LEXIS 26 (2011), cert. denied, No. S11C0946, 2011 Ga. LEXIS 632 (Ga. Sept. 6, 2011) (decided under former O.C.G.A. § 24-9-67.1). Security experts. - Trial court did not abuse the court’s discretion in refusing to permit a mother’s expert on security practices to testify about the content of certain service call lists on which the expert had relied in forming the expert’s opinions about the adequacy of security at the complex because the mother made no showing that the circumstances of the various incidents reflected on the lists were substantially similar to the murder of her son, such that those incidents would bear directly upon the question of foreseeability; the lists were confusing, and substantial explanation would have been required for the jury to understand the lists. Raines v. Maughan, 312 Ga. App. 303, 718 S.E.2d 135, 2011 Ga. App. LEXIS 945

(2011), cert. denied, No. S12C0436, 2012 Ga. LEXIS 270 (Ga. Mar. 5, 2012) (decided under former O.C.G.A. § 24-9-67.1). Expertise on driving and tires. - Trial court did not err in determining that the affidavits of a driver’s experts were inadequate under former O.C.G.A. § 249-67.1(b) (see now O.C.G.A. §§ 24-7-702, 24-7-703) to defeat summary judgment in favor of a manufacturer in the driver’s products liability action because the affidavits did not describe the facts or data upon which the experts’ opinions were based, did not explain the principles or methods the experts used to reach the experts’ conclusions about the tire, and did not provide support for a conclusion that the experts had applied those principles and methods reliably in the experts’ inspections of the tire. Udoinyion v. Michelin N. Am., Inc., 313 Ga. App. 248, 721 S.E.2d 190, 2011 Ga. App. LEXIS 1092 (2011), cert. dismissed, No. S12C1769, 2012 Ga. LEXIS 869 (Ga. Nov. 5, 2012) (decided under former O.C.G.A. § 24-967.1). Gas experts. - Trial court did not err in the court’s determinations that plaintiffs’ expert was not qualified to serve as an expert in the case and that the expert’s opinions were not sufficiently reliable on the question of whether a gas company was negligent because the expert failed to cite any treatise or authority supporting the belief that, under readily ascertainable and verifiable standards recognized in the field, the gas company’s actions in connection with the explosion fell below the standard of care. Anderson v. Atlanta Gas Light Co., 324 Ga. App. 801, 751 S.E.2d 589, 2013 Ga. App. LEXIS 941 (2013), cert. denied, No. S14C0480, 2014 Ga. LEXIS 280 (Ga. Mar. 28, 2014). Safety of alternative designs in vehicle accidents. - In a vehicle collision that resulted in the death of the plaintiffs’ four-year-old child, the trial court did not err in excluding the testimony and statistical analyses of the defendant’s two experts regarding the overall safety of the challenged design to the overall safety of available alternative designs because the evidence was irrelevant as it concerned the overall safety of various vehicles, but the plaintiffs’ claims related only to the

Other Specific Experts (Cont’d) safety of the fuel system design in rear impacts; the prejudice and confusion from the proposed testimony outweighed the testimony’s probative value; and neither expert satisfied the requirements for the admission of expert testimony. Chrysler Group, LLC v. Walden, 339 Ga. App. 733, 792 S.E.2d 754, 2016 Ga. App. LEXIS 646 (2016), aff’d, 303 Ga. 358, 812 S.E.2d 244, 2018 Ga. LEXIS 154 (2018). No error in excluding biochemist’s testimony. - Given the biochemist’s failure to conduct any tests, the biochemist’s lack of knowledge regarding thermal burns, and the biochemist’s failure to review the child’s medical records, the trial court was authorized to reject as speculative the biochemist’s claim that nothing else could have caused the burns to the child’s feet other than the sanitizer used to clean the playground. At best, the biochemist’s causation opinions were grounded in the assumption that the bottoms of the child’s feet were exposed to the sanitizer, even though the record contained no evidence of exposure to that chemical. Stern v. Pettis, 357 Ga. App. 78, 847 S.E.2d 824, 2020 Ga. App. LEXIS 456 (2020), cert. denied, No. S21C0374, 2021 Ga. LEXIS 338 (Ga. May 17, 2021). Real estate appraiser qualified to testify. - In an action involving a permanent nuisance caused by noises from a power plant that used gas-fired combustion turbine units, a certified real estate appraiser with 22 years of experience in the area, described at length the methodology the appraiser used to arrive at a reduction in value for the property at issue as a result of the nuisance and the appraiser’s reasons for employing that method, was properly allowed to testify under O.C.G.A. § 24-7-702. Oglethorpe Power Corp. v. Estate of Forrister, 332 Ga. App. 693, 774 S.E.2d 755, 2015 Ga. App. LEXIS 384 (2015), cert. denied, No. S15C1689, 2015 Ga. LEXIS 704 (Ga. Oct. 5, 2015). Expert on property value. - In an action to acquire land, a duly qualified expert may state the expert’s opinion as to value without the necessity of stating the

facts on which the expert’s opinion is based. DeKalb County v. Cowan, 151 Ga. App. 753, 261 S.E.2d 478, 1979 Ga. App. LEXIS 2783 (1979) (decided under former Code 1933, § 38-1710). In an action to acquire land, if the expert testifies that the expert’s opinion is based in part on a personal inspection of the property, it is no ground for objection that the expert’s inspection was made subsequent to the taking. DeKalb County v. Cowan, 151 Ga. App. 753, 261 S.E.2d 478, 1979 Ga. App. LEXIS 2783 (1979) (decided under former Code 1933, § 381710). In an action to acquire land, it was not error to allow expert testimony as to the rental value of the property over the county’s objection that the figure was based on the rental value of other property which was not shown to be comparable as the comparability of the other property was a matter going to the weight to be given the testimony, not its admissibility, and further, the testimony was relevant on the issue of consequential damages for the temporary loss of use of the property. DeKalb County v. Cowan, 151 Ga. App. 753, 261 S.E.2d 478, 1979 Ga. App. LEXIS 2783 (1979) (decided under former Code 1933, § 38-1710). Expert surveyor’s reliance on hearsay. - Trial court did not err in overruling a landowner’s objection to the admission of evidence of a survey conducted by another surveyor employed by the landowner’s neighbors in that the survey was prepared in partial reliance on data outside of the surveyor’s personal knowledge; an expert may base the expert’s opinion on hearsay and may be allowed to testify as to the basis for the expert’s findings, and the lack of the expert’s personal knowledge goes to the weight assigned to the opinion. Ellis v. Holder, 267 Ga. App. 503, 600 S.E.2d 425, 2004 Ga. App. LEXIS 692 (2004) (decided under former O.C.G.A. § 24-9-67). Value of condemned land. - Expert’s opinion as to what expert would pay for condemned land was probative of the land’s fair market value and improperly excluded by the trial court. Jotin Realty Co. v. Department of Transp., 174 Ga.

App. 809, 331 S.E.2d 605, 1985 Ga. App. LEXIS 1965 (1985) (decided under former O.C.G.A. § 24-9-67). Expert on safety and causation. - Propriety of expert opinion as to whether a particular condition is safe or unsafe certainly is within the scope and purview of an expert’s opinion; moreover, testimony as to causation is a proper matter for expert testimony. Pembrook Mgt., Inc. v. Cossaboon, 157 Ga. App. 675, 278 S.E.2d 100, 1981 Ga. App. LEXIS 1963 (1981) (decided under former O.C.G.A. § 24-9-67). Licensed contractor could opine what would be revealed by home inspection. - In a tenant’s claim for injuries against the tenant’s landlord after a staircase collapsed, the trial court erred in disregarding the tenant’s expert’s opinion that a pre-purchase structural inspection would have led the landlord to discover the defects; although the expert was not a home inspector, the expert was a licensed residential and commercial contractor. Pajaro v. S. Ga. Bank, 339 Ga. App. 334, 793 S.E.2d 209, 2016 Ga. App. LEXIS 622 (2016). Striking surveyor’s affidavits held proper. - In a suit between two landowners to enforce the terms of an easement, the trial court did not abuse the court’s discretion in excluding two affidavits from a surveyor in determining land elevation as no testimony was offered regarding any knowledge, skill, experience, training, or education the witness possessed in that capacity, and no evidence was presented as to the principles and methods the witness employed including whether the methods were reliable. McGuire Holdings, LLLP v. TSQ Partners, LLC, 290 Ga. App. 595, 660 S.E.2d 397, 2008 Ga. App. LEXIS 379 (2008) (decided under former O.C.G.A. § 24-967.1). Police officer as expert in negligence case. - In a negligence case, assuming that admission of a police officer’s affidavit opining as to the cause of an accident was error under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7702, 24-7-703), the error was harmless in light of other evidence showing that the proximate cause of the accident was the

driver’s own negligence, including the driver’s statements to treating physicians that the driver was reaching for the driver’s cell phone when the driver ran off the road and a statement to the insurance adjustor that the driver was distracted. Kecskes v. City of Mt. Zion, 300 Ga. App. 348, 685 S.E.2d 329, 2009 Ga. App. LEXIS 1131 (2009), cert. dismissed, No. S10C0445, 2010 Ga. LEXIS 353 (Ga. Apr. 19, 2010) (decided under former O.C.G.A. § 24-9-67.1). Opinion of police officer on auto accident. - Investigating officer’s opinion testimony regarding the sequence of events involved in a vehicle collision is admissible evidence as a police officer with investigative experience on automobile collisions is an expert who may testify as to the cause of an accident the officer investigated. Bennett v. Mullally, 263 Ga. App. 215, 587 S.E.2d 385, 2003 Ga. App. LEXIS 1161 (2003), overruled in part, Willis v. State, 304 Ga. 686, 820 S.E.2d 640, 2018 Ga. LEXIS 685 (2018) (decided under former O.C.G.A. § 24-9-67). Forensic toxicologist permitted to testify on effects of methamphetamine. - In a wrongful death and negligence action, in which the decedent was riding a motorcycle when the decedent collided with an automobile occupied by the defendants, an investigator was qualified to present the investigator’s opinion as to why the decedent contributed to the accident because the investigator’s conclusion was based partly on the area’s hilly terrain, and its associated reduced visibility, as well as witness statements; the investigator had received training and conducted traffic investigations; and the investigator walked and photographed the scene, marked the locations of the motorcycle and the automobile at the time of impact, ascertained the weather and lighting conditions, and noted the scene’s hilly terrain. Clack v. Hasnat, 354 Ga. App. 502, 841 S.E.2d 210, 2020 Ga. App. LEXIS 186 (2020). In a wrongful death and negligence action, in which the decedent was riding a motorcycle when the decedent collided with an automobile occupied by the defendants, a forensic toxicologist with the Georgia Bureau of Investigation did not

Other Specific Experts (Cont’d) testify to perception-reaction time or whether the positive methamphetamine test was the result of illegal or prescription drugs for which the forensic toxicologist was allegedly not qualified to testify; however, the forensic toxicologist was qualified as an expert regarding the matters to which the forensic toxicologist did testify, including the effects of methamphetamine on behavior and conduct. Clack v. Hasnat, 354 Ga. App. 502, 841 S.E.2d 210, 2020 Ga. App. LEXIS 186 (2020). Toxicologist and pharmacologist, who was not a medical doctor, was competent to give an opinion in a medical malpractice action that a drug prescribed by defendants caused plaintiff’s miscarriage since the testimony was not offered to address the applicable standard of care but to show causation. Sinkfield v. Shi-Han Oh, 229 Ga. App. 883, 495 S.E.2d 94 (decided under former O.C.G.A. § 249-67). Officer qualified as expert on gangs. - Police officer was properly qualified as an expert in gang identity and investigation as the officer was a state certified gang investigator; that the officer was trained in gang identity and investigation; that the officer trained new hires about gangs; and that the officer regularly monitored six Clayton County-based gangs, and was knowledgeable about the neighborhoods in which the gangs operated. The officer also testified that the officer knew the colors associated with the defendant’s gang and had seen photographs of their gang signs. Burgess v. State, 292 Ga. 821, 742 S.E.2d 464, 2013 Ga. LEXIS 369 (2013). Expert’s conclusion could not serve as basis for summary judgment. - Expert’s testimony as to the cause of an auto accident was speculative and could not support summary judgment as the credibility of the expert and the weight to be given to the opinion were matters to be addressed by the jury; moreover, if the expert’s opinion was based upon inadequate knowledge, this fact did not mandate the exclusion of the opinion but, rather, presented a jury question as to the

weight which should be assigned to the opinion. Layfield v. DOT, 280 Ga. 848, 632 S.E.2d 135, 2006 Ga. LEXIS 462 (2006) (decided under former O.C.G.A. § 24-967.1). Expert on elevators. - In a premises liability case involving an elevator that stopped above landing level, the trial court properly allowed the plaintiffs’ expert to give opinion testimony that the elevator maintenance provider did not follow industry standards in maintaining the elevator; the expert based the opinion on the expert’s personal knowledge of the elevator industry, the expert’s review of the elevator maintenance records, and the deposition testimony of the provider’s mechanics. Brady v. Elevator Specialists, Inc., 287 Ga. App. 304, 653 S.E.2d 59, 2007 Ga. App. LEXIS 945 (2007) (decided under former O.C.G.A. § 24-9-67.1). Speculative opinion testimony by expert improperly admitted. - In a premises liability case involving an elevator that stopped above landing level, the trial court should have excluded the opinion of an expert that if the elevator maintenance provider had followed a more aggressive maintenance schedule for the elevator, the condition in the elevator that led to its mis-leveling would almost certainly have been discovered or prevented before a passenger was injured; the expert had showed no basis for the opinion. Brady v. Elevator Specialists, Inc., 287 Ga. App. 304, 653 S.E.2d 59, 2007 Ga. App. LEXIS 945 (2007) (decided under former O.C.G.A. § 24-9-67.1). Expert on diminution of value. - In a breach of contract and bad faith refusal to pay claim under a policy of lender’s title insurance, since a retrial was issued on another issue, whether environmental stigma was a title defect covered by the title insurance policy was an issue that could be addressed again as to actual damages but the trial court properly permitted the insured’s expert to testify as to diminution of the subject property’s value. Old Republic Nat’l Title Ins. Co. v. RM Kids, LLC, 337 Ga. App. 638, 788 S.E.2d 542, 2016 Ga. App. LEXIS 385 (2016), cert. denied, No. S16C1843, 2017 Ga. LEXIS 117 (Ga. Feb. 27, 2017). Capacity to execute a deed. - Even if registered nurses and licensed practical

nurses who cared for a decedent after the decedent’s diagnosis with Alzheimer’s disease lacked qualifications to testify as experts about the decedent’s capacity to execute a deed, a trial court did not err in permitting the nurses to testify because even a lay witness could give evidence on the question of capacity as long as the witness gave sufficient facts to form the basis of the witness’s opinion; the witnesses offered detailed testimony about the decedent’s inability to recognize the decedent’s sibling or sign the decedent’s own name, the decedent’s chronic disorientation, the decedent’s need for constant redirection and reorientation, and other factual observations the nurses made about the decedent’s mental state and the decedent’s apparent lack of capacity. Smith v. Smith, 281 Ga. 380, 637 S.E.2d 662, 2006 Ga. LEXIS 964 (2006) (decided under former O.C.G.A. § 24-9-67.1). Striking valuation testimony proper. - Trial court did not manifestly abuse the court’s discretion by striking certain testimony of the condemnee’s expert witness regarding valuation on the ground that the testimony was without sufficient foundation since the testimony was based on an assumption of the value as if the subject property had already been subdivided, which it had not; in making its ruling, the trial court properly discerned that, even though a different use of the property was shown to have been reasonably probable, a jury cannot evaluate the property as though the new use were an accomplished fact. Woodland Partners Ltd. P’ship v. DOT, 286 Ga. App. 546, 650 S.E.2d 277, 2007 Ga. App. LEXIS 735 (2007), cert. denied, No. S07C1767, 2007 Ga. LEXIS 698 (Ga. Sept. 24, 2007) (decided under former O.C.G.A. § 24-967.1). Probative value. - To the extent that an affidavit as to the value of a truck was offered as an expert opinion, the affidavit lacked probative value as there was no evidence that the valuation method the affiant used was reliable. Dowdell v. Volvo Commer. Fin., LLC, 286 Ga. App. 659, 649 S.E.2d 750, 2007 Ga. App. LEXIS 722 (2007) (decided under former O.C.G.A. § 24-9-67.1). Employee of state environmental agency. - In a suit against a permittee by the Environmental Protection Division

of the Georgia Department of Natural Resources (EPD), the permittee objected to testimony of an EPD employee on the ground that the employee was not qualified as an engineer under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7702, 24-7-703). The trial court, however, qualified the witness and permitted the employee to testify as an expert in biologic and anaerobic processes, and did not abuse the court’s discretion in doing so. Agri-Cycle LLC v. Couch, 284 Ga. 90, 663 S.E.2d 175, 2008 Ga. LEXIS 546 (2008) (decided under former O.C.G.A. § 24-967.1). Individuals not qualified as mechanical experts. - In a personal injury case when a driver alleged that a loose tie rod caused the driver to lose control of the steering, neither of the driver’s experts was qualified to render an opinion as to the cause of the accident; the first expert did not have adequate knowledge or experience with the mechanical aspects of a vehicle to determine if mechanical failure caused the vehicle to lose control and also had no experience in evaluating design defects, and the second expert, an experienced mechanic and a police officer, had no experience in the area of accident reconstruction or in evaluating the circumstances surrounding catastrophic mechanical failure. Smith v. Liberty Chrysler-Plymouth-Dodge, Inc., 285 Ga. App. 606, 647 S.E.2d 315, 2007 Ga. App. LEXIS 597 (2007), cert. denied, No. S07C1526, 2007 Ga. LEXIS 861 (Ga. Nov. 5, 2007), cert. denied, 552 U.S. 1317, 128 S. Ct. 1883, 170 L. Ed. 2d 757, 2008 U.S. LEXIS 3278 (2008) (decided under former O.C.G.A. § 24-9-67.1). Expert on falls policy. - Since the plaintiff’s witness was not qualified to testify as an expert in a medical malpractice claim based on injuries and the death of an elderly patient, in any event, the witness was not competent to testify based upon the witness’s sheer lack of knowledge regarding fall prevention because the witness never authored a falls policy and the witness’s knowledge of those policies was strictly limited to the policy in effect at the witness’s place of employment, the witness had no knowledge of the Morse Fall Scale, which was

Other Specific Experts (Cont’d) the method of fall risk assessment utilized in this case, prior to being retained, and the witness admitted in deposition that the witness did not rely on any textbooks or teachings to base the witness’s opinions and that the witness performed no literary searches prior to forming the witness’s opinion. Sanders v. United States, No. CV 109-164, 2011 U.S. Dist. LEXIS 155970 (S.D. Ga. Aug. 26, 2011). Expert on polyp removal. - Trial court erred in granting the doctor’s motion in limine to exclude the testimony of the patient’s expert on the grounds that the expert was not qualified to provide an expert opinion on hysteroscopic removal of fibroids and that the expert’s testimony was speculative as the expert had significant experience in removing polyps though hysteroscopic procedures and the removal of fibroids via hysteroscopy was not markedly different from removal of polyps via that procedure. Cartledge v. Montano, 325 Ga. App. 322, 750 S.E.2d 772, 2013 Ga. App. LEXIS 958 (2013), cert. denied, No. S14C0570, 2014 Ga. LEXIS 267 (Ga. Mar. 28, 2014). Same specialty not required. - Trial court did not abuse the court’s discretion in finding the plaintiffs’ expert affiant competent to testify as the expert was a licensed medical doctor and did not have to have the same speciality as the physician to be considered a member of the same profession and the expert had taught in the area of cardiac electrophysiology during the relevant time period. Graham v. Reynolds, 343 Ga. App. 274, 807 S.E.2d 39, 2017 Ga. App. LEXIS 483 (2017), cert. denied, No. S18C0460, 2018 Ga. LEXIS 310 (Ga. May 7, 2018). Doctor as expert on pulmonary embolisms. - In a case decided under former O.C.G.A. § 24-9-67.1, a doctor was properly qualified as an expert since the doctor acted as a consultant on the causation of pulmonary embolisms and consulted emergency room physicians about some of the patient’s tests and researched the issue. Bonds v. Nesbitt, 322 Ga. App. 852, 747 S.E.2d 40, 2013 Ga. App. LEXIS

624 (2013) (decided under former O.C.G.A. § 24-9-67.1). Expert with different speciality than defendant doctor. - Trial court properly denied a doctor’s motion to exclude testimony from the patient’s expert witness, despite the fact that the expert had a different specialty than the doctor, as such was allowed under the plain language of former O.C.G.A. § 24-9-67.1(c) (see now O.C.G.A. §§ 24-7-702, 24-7-703), and the expert’s testimony addressed the doctor’s alleged misdiagnosis of the patient’s condition, which was the ultimate issue in the case. Mays v. Ellis, 283 Ga. App. 195, 641 S.E.2d 201, 2007 Ga. App. LEXIS 9 (2007), cert. denied, No. S07C0697, 2007 Ga. LEXIS 326 (Ga. Apr. 24, 2007) (decided under former O.C.G.A. § 24-9-67.1). Urologist. - Trial court did not abuse the court’s discretion in denying a hospital board’s motion to exclude the testimony of the plaintiff’s medical expert in a medical malpractice suit because under the plaintiff’s complaint the ultimate issues to be decided were whether the hospital staff and the board’s urologists committed malpractice by failing to timely evaluate the plaintiff’s injury, not whether the board’s urologists negligently performed the exploratory surgery or that the urologists negligently removed the plaintiff’s testicle contrary to urological standards of care; the area of practice or specialty in which the opinion was to have been given in the case was an area of practice in which the plaintiff’s medical expert possessed the requisite knowledge and experience under former O.C.G.A. § 24-9-67.1(c)(2) (see now O.C.G.A. §§ 24-7-702, 24-7-703). MCG Health, Inc. v. Barton, 285 Ga. App. 577, 647 S.E.2d 81, 2007 Ga. App. LEXIS 584 (2007), cert. denied, No. S07C1491, 2007 Ga. LEXIS 821 (Ga. Oct. 29, 2007) (decided under former O.C.G.A. § 24-967.1). Expert on hematoma. - Trial court did not abuse the court’s discretion in denying a motion in limine filed by a doctor and the board of regents of a medical college to exclude expert testimony because the trial court correctly deter-

mined that the expert’s opinion was based on sufficient facts and data in order to be admissible at trial; the expert deposed that the expert’s opinion of the cause of the patient’s epidural hematoma was derived from applying the expert’s medical knowledge and the expert’s experience with previous cases to the patient’s medical records and deposition testimony regarding the incident given by the doctor and the patient. Bd. of Regents of the Univ. Sys. v. Casey, 300 Ga. App. 850, 686 S.E.2d 807, 2009 Ga. App. LEXIS 1287 (2009) (decided under former O.C.G.A. § 24-9-67.1). Experts on erectile dysfunction. - In a medical malpractice action, the trial court’s order granting the defending doctor’s motion to exclude the patient’s expert witness testimony as the testimony related to the causation and permanence of the patient’s erectile dysfunction based on a certain test was vacated because the order could be interpreted as requiring the exclusion of all the expert’s opinion testimony as to the cause and permanence of the patient’s erectile dysfunction. Smith v. Rodillo, 330 Ga. App. 365, 765 S.E.2d 432, 2014 Ga. App. LEXIS 738 (2014), cert. denied, No. S15C0665, 2015 Ga. LEXIS 262 (Ga. Apr. 20, 2015). Expert’s testimony on death following paralysis caused by medical negligence. - In a wrongful death case, the trial court did not manifestly abuse the court’s discretion in denying the defendants’ motion to exclude an expert’s opinion because the expert’s opinion that the decedent would not have died with the conditions which took the victim’s life had the victim not become paralyzied due to the alleged medical malpractice was based on the expert’s review of the decedent’s medical records. Emory Univ. v. Willcox, 355 Ga. App. 542, 844 S.E.2d 889, 2020 Ga. App. LEXIS 350 (2020). Performance of procedures in dental malpractice. - In a dental malpractice case, an expert witness’s testimony about available treatment options for the patient’s tumor in the patient’s mandible was improperly excluded because the expert was not unqualified to render an opinion as the expert did not have to have performed a particular medical procedure

within five years prior to the case to testify. Ouanzin v. Coast Dental Servs., 354 Ga. App. 168, 840 S.E.2d 686, 2020 Ga. App. LEXIS 140 (2020), cert. denied, No. S20C1041, 2020 Ga. LEXIS 822 (Ga. Sept. 28, 2020). Jury instructions on standard of care. - In a medical malpractice case when evidence of an expert’s personal practices is admitted, the trial court must give jury instructions that clearly define the legal meaning of standard of care; enunciate the principle that a mere difference in views between physicians does not by itself prove malpractice; and clarify concepts such as burden of proof and credibility of witnesses. In addition, the party whose expert has been cross-examined has the ability to elicit explanations for why the expert’s practices differ from what that expert attested to as the standard of care. Condra v. Atlanta Orthopaedic Group, P.C., 285 Ga. 667, 681 S.E.2d 152, 2009 Ga. LEXIS 391 (2009) (decided under former O.C.G.A. § 24-9-67.1). Criminal Cases 1. Procedural Considerations Giving testimony based on lab report not yet admitted into evidence. - Expert medical witness could not give an opinion on the cause of death based on lab report which had not yet been admitted into evidence, but error in allowing such opinion was cured when the lab report was later introduced into evidence. Vaughn v. State, 249 Ga. 803, 294 S.E.2d 504, 1982 Ga. LEXIS 1199 (1982) (decided under former O.C.G.A. § 24-9-67). Introduction of fingerprint magnifications not necessary when expert testified as to expert’s comparisons. - Expert in field of fingerprint identification was qualified to state opinion based on expert’s analysis and comparison that fingerprints found at scene of the crime were those of appellant; and in presenting this expert testimony, it was not necessary for state to introduce magnification of prints to demonstrate at trial the points of similarity. W.B.S. v. State, 163 Ga. App. 471, 294 S.E.2d 705, 1982 Ga. App. LEXIS 2539 (1982) (decided under former O.C.G.A. § 24-9-67). When witness is tendered as an expert. - Witness who was not tendered as

Procedural Considerations (Cont’d) an expert until near the end of the witness’s testimony and after cross-examination qualified as an expert at the inception of the witness’s testimony and could properly render an expert opinion. In re C.W.D., 232 Ga. App. 200, 501 S.E.2d 232 (decided under former O.C.G.A. § 24-967). Testimony by examining psychologist on abuse. - In a child molestation case, there was no error in allowing certain expert testimony by a psychologist. The psychologist was properly allowed to explain conclusions based on tests developed either in the scientific community or from the psychologist’s own clinical experience; the psychologist could testify that the victim’s symptoms and accounts were highly consistent with sexual abuse; and because the trial court was authorized to conclude that one’s ability to manufacture stories of abuse based upon his or her intelligence quotient (IQ) level fell beyond the ken of the average juror, the psychologist was properly allowed to testify that a person with the victim’s IQ of 74 would have difficulty fabricating a detailed fictional account of abuse. Mullis v. State, 292 Ga. App. 218, 664 S.E.2d 271, 2008 Ga. App. LEXIS 736 (2008) (decided under former O.C.G.A. § 24-9-67). Failure to identify expert before hearing not grounds to exclude testimony. - Defendant was not entitled to a new trial due to ineffective assistance of trial counsel for failure to present the testimony of an expert witness who could have established that, based upon the video, the defendant could not have inflicted the muzzle wound to the victim’s right leg and that the victim accidentally shot the victim’s own leg because the jury was able to determine for itself whether the defendant was ever close enough to the victim to cause a muzzle contact wound; and it was undisputed that the shot to the victim’s leg was not the fatal wound. Mosby v. State, 300 Ga. 450, 796 S.E.2d 277, 2017 Ga. LEXIS 1 (2017) (decided under former O.C.G.A. § 24-7707). In a child deprivation hearing, a parent’s claim that the trial court erred by

allowing the state to call an expert witness without identifying the expert or producing the medical records in advance of the hearing was meritless because: (1) the parent’s discovery request did not ask the state to identify each person whom the state expected to call as an expert witness at trial; and (2) the parent did not show prejudice from the lack of any additional information other than a broad assertion of insufficient time to prepare for the hearing. In the Interest of A.A., 293 Ga. App. 471, 667 S.E.2d 641, 2008 Ga. App. LEXIS 977 (2008) (decided under former O.C.G.A. § 24-9-67). Failure to retain crime scene reconstruction or firearms expert. - Defendant was not entitled to a new trial due to ineffective assistance of trial counsel for failure to consult with or retain a crime scene reconstruction or firearms expert to explain the events the video portrayed because the jury could draw its own conclusions about the events shown on the video; the defendant failed to show that the testimony of an expert witness with respect to what the expert observed on the video would have been admissible or that the jury would have accepted the expert’s testimony over what the jury observed; and, even if admissible, the jurors could have disregarded the expert’s testimony about what the expert saw in the video if it conflicted with what the jurors saw for themselves. Mosby v. State, 300 Ga. 450, 796 S.E.2d 277, 2017 Ga. LEXIS 1 (2017) (decided under former O.C.G.A. § 24-7707). 2. Qualification as Expert Medical examiner proper expert on observations from autopsy. Medical examiner’s testimony was not without proper foundation as the examiner was qualified, tendered, and admitted as an expert and, therefore, the examiner was permitted to give opinion testimony based on observations during the autopsy, as well as on facts provided by other witnesses; the examiner testified that the opinion as to the manner of death was based on the appearance of the wound, the path and course of the bullet, the presence of a laceration to the head of the victim, and the absence of a gun at the scene.

Smith v. State, 276 Ga. 97, 575 S.E.2d 450, 2003 Ga. LEXIS 9 (2003) (decided under former O.C.G.A. § 24-9-67). Testimony by medical examiner regarding whether injuries were accidental. - In the defendants’ murder trial in which the defendants claimed a shooting was accidental as the parties struggled, because the medical examiner’s testimony that the victim’s injuries were inconsistent with an accidental shooting did not opine as to the defendants’ mental intent for any crime or defense, there was no violation of O.C.G.A. § 24-7-704, and because the examiner’s opinion was based on the examiner’s specialized knowledge and training, O.C.G.A. § 24-7-707, any objection would have been meritless. Eller v. State, 303 Ga. 373, 811 S.E.2d 299, 2018 Ga. LEXIS 130 (2018), overruled in part, Lester v. State, 310 Ga. 81, 849 S.E.2d 425, 2020 Ga. LEXIS 738 (2020) (decided under former O.C.G.A. § 24-7-707). Expert on handwriting analysis. Defendant alleged that the witness was not qualified as a handwriting expert because the witness failed the test to become a member of the American Board of Forensic Document Examiners and was only a trainee member of the American Society of Forensic Document Examiners; although this is true, the witness testified to becoming a member of the Southeastern Association of Forensic Document Examiners after completing two years of training, that the witness had been performing handwriting analysis on a daily basis for the Georgia Crime Lab for the last eight years, that the witness had examined thousands of documents, and that the witness had been qualified as an expert witness in criminal cases tried in a Georgia superior court approximately eighteen times; thus, there was no abuse of discretion by the trial court in qualifying the witness as an expert in forensic document examination. Poole v. State, 270 Ga. App. 432, 606 S.E.2d 878, 2004 Ga. App. LEXIS 1468 (2004), cert. denied, No. S05C0578, 2005 Ga. LEXIS 271 (Ga. Mar. 28, 2005) (decided under former O.C.G.A. § 24-967). Advocate for the victims of sexual assault at a rape crisis center was properly qualified as an expert as the

advocate had been through 50 hours of sexual assault training and had two years of experience, in which the advocate had counseled over 100 purported victims of sexual assault; further, the advocate had published one article that was presented at a seminar. Stevenson v. State, 272 Ga. App. 335, 612 S.E.2d 521, 2005 Ga. App. LEXIS 284 (2005), cert. dismissed, No. S05C1805, 2005 Ga. LEXIS 758 (Ga. Oct. 24, 2005) (decided under former O.C.G.A. § 24-9-67). Expert in domestic violence. Certification of an expert was not an abuse of discretion as the witness had over 20 years of experience in the field of domestic violence and an educational background in psychology. Miller v. State, 273 Ga. App. 761, 615 S.E.2d 843, 2005 Ga. App. LEXIS 612 (2005) (decided under former O.C.G.A. § 24-9-67). Expert on Shaken Baby Syndrome. Employee of the Department of Family and Children Services was properly allowed to testify that a victim’s condition and behavior was consistent with Shaken Baby Syndrome based on the employee’s extensive experience and training with respect to fatal child abuse and Shaken Baby Syndrome; the fact that the employee did not hold a medical degree went only to the weight of the employee’s testimony, and the employee’s evidence was cumulative of that given by physicians. Waits v. State, 282 Ga. 1, 644 S.E.2d 127, 2007 Ga. LEXIS 305 (2007), overruled in part, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020) (decided under former O.C.G.A. § 24-9-67). Child abuse accommodation syndrome. - Expert testimony by a licensed psychologist regarding child abuse accommodation syndrome was properly admitted because the expert testified regarding how the victim’s demeanor was consistent with having been sexually abused and not whether the victim was telling the truth. Haithcock v. State, 320 Ga. App. 886, 740 S.E.2d 806, 2013 Ga. App. LEXIS 295 (2013), cert. denied, No. S13C1093, 2013 Ga. LEXIS 679 (Ga. Sept. 9, 2013) (decided under former O.C.G.A. § 24-7-707). Qualified as expert in administration of intelligence tests for criminal defendants. - Trial court did not abuse the court’s discretion by qualifying a li-

Qualification as Expert (Cont’d) censed professional counselor and qualified psychometrist as an expert in the administration of intelligence tests after hearing testimony regarding the counselor’s relevant education and experience based on the fact that the counselor did not independently perform the Wechsler Adult Intelligence Scales-Third Edition test (WAIS-III) on the defendant and merely assisted in the test’s administration, nor did the trial court err in admitting the sufficiently relevant and reliable evidence regarding the WAIS-III test administered since the counselor’s supervisor did not have to be physically present in the room with the defendant during the counselor’s testing session in order to supervise the counselor. Further, the defendant failed to show that the tests results were unreliable after the counselor’s unrebutted testimony regarding the manner in which the testing was conducted. Rogers v. State, 282 Ga. 659, 653 S.E.2d 31, 2007 Ga. LEXIS 838 (2007), cert. denied, 552 U.S. 1311, 128 S. Ct. 1882, 170 L. Ed. 2d 747, 2008 U.S. LEXIS 3194 (2008), overruled in part, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020) (decided under former O.C.G.A. § 24-9-67). Expert in street level narcotics. - An investigator testified that the investigator had been employed in law enforcement since 1988; that the investigator had received 240 hours of narcotics training; that the investigator had attended a regional drug training academy specializing in the recognition of clandestine methamphetamine labs; that the investigator had attended informant management classes, undercover drug classes, and drug identification classes; that the investigator had previously investigated cases involving possession of narcotics with the intent to distribute and manufacturing of the same, including methamphetamine; and, among other things, that the investigator used confidential informants to assess new trends in the world of illegal narcotics. Based on this training and experience, there was no abuse of discretion by the trial court in qualifying the investigator as an expert in the street level narcotics

trade, the characteristics of a methamphetamine lab, and the identification of a substance as possible methamphetamine. Boone v. State, 293 Ga. App. 654, 667 S.E.2d 880, 2008 Ga. App. LEXIS 1041 (2008) (decided under former O.C.G.A. § 24-9-67). Officer is an expert on narcotics investigations. - Trial court did not abuse the court’s discretion during the defendant’s trial for possession of cocaine with the intent to distribute in allowing the arresting officer to testify as an expert witness on the issue of the defendant’s intent to distribute crack cocaine because the officer had over 900 hours of specialized training as a narcotics officer, was familiar with how crack cocaine was typically packaged and sold, and had made numerous drug-related arrests, at least 50 of which involved crack cocaine. Further, the officer’s testimony was relevant to the issue of whether the defendant possessed the cocaine with the intent to distribute the cocaine and was within the scope of the officer’s expertise. Thomas v. State, 321 Ga. App. 214, 741 S.E.2d 298, 2013 Ga. App. LEXIS 340 (2013), cert. denied, No. S13C1182, 2013 Ga. LEXIS 777 (Ga. Sept. 23, 2013), overruled in part, Langley v. State, 313 Ga. 141, 868 S.E.2d 759, 2022 Ga. LEXIS 14 (2022) (decided under former O.C.G.A. § 24-7-707). Testimony of forensic toxicologist. - In a prosecution for driving under the influence, testimony of the forensic toxicologist who tested the defendant’s blood was properly admitted as expert testimony as the witness had a permit from the Georgia Bureau of Investigation to perform chemical analyses of blood specimens received from the police, and the defendant subsequently had the opportunity to cross-examine the witness about the witness’s credentials and testimony. Fowler v. State, 294 Ga. App. 864, 670 S.E.2d 448, 2008 Ga. App. LEXIS 1194 (2008), cert. denied, No. S09C0529, 2009 Ga. LEXIS 204 (Ga. Feb. 23, 2009), overruled in part, State v. Henry, 312 Ga. 632, 864 S.E.2d 415, 2021 Ga. LEXIS 650 (2021) (decided under former O.C.G.A. § 24-9-67). Nurse as an expert on sexual assault examinations. - Evidence was sufficient for a rational trier of fact to find

the defendant guilty of aggravated sodomy of one victim and rape and aggravated sodomy of a second victim because the jury was authorized to conclude, based on a nurse’s testimony and the medical evidence, that penetration occurred; the nurse was properly tendered and accepted as an expert in the subject of sexual assault examinations, and the nurse testified that the first victim’s external injuries established the potential for penetration. Blash v. State, 304 Ga. App. 542, 697 S.E.2d 265, 2010 Ga. App. LEXIS 570 (2010) (decided under former O.C.G.A. § 24-9-67). Officer qualified as shoe-print matching expert. - Juvenile court did not abuse the court’s discretion in determining that an officer possessed the requisite skill and experience to testify as an expert because the officer was experienced, had investigated thousands of crimes, was trained in crime scene observation, and had handled other cases involving shoe-print matching. In the Interest of J.D., 305 Ga. App. 519, 699 S.E.2d 827, 2010 Ga. App. LEXIS 743 (2010) (decided under former O.C.G.A. § 24-967). Expert in value of transportation equipment in theft by taking case. - Trial court did not abuse the court’s discretion in qualifying a witness as an expert in the valuation of transportation equipment because the witness testified that the witness had been in the repossession business 22 years, with another 6 or 8 years dealing specifically with equipment repossession, that the witness was qualified to estimate the value and condition of transportation equipment, and that the witness had been qualified as an expert 15-20 times in other court proceedings. Rushing v. State, 305 Ga. App. 629, 700 S.E.2d 620, 2010 Ga. App. LEXIS 773 (2010) (decided under former O.C.G.A. § 24-9-67). Qualification as expert in commercial sexual exploitation of children. - Trial court did not abuse the court’s discretion in qualifying a witness as an expert in commercial sexual exploitation of children as the witness testified that the witness was the director of forensic ser-

vices at the Georgia Center for Child Advocacy; had conducted over one thousand forensic interviews; had been qualified as a forensic-interview expert approximately 46 times; had undergone training for mental health providers in the area of commercial sexual exploitation of children and become a facilitator to train others on the topic; and had attended symposiums and seminars with instruction from the Federal Bureau of Investigation on how to work with sexually exploited children. Pepe-Frazier v. State, 331 Ga. App. 263, 770 S.E.2d 654, 2015 Ga. App. LEXIS 139 (2015), cert. denied, No. S15C1105, 2015 Ga. LEXIS 412 (Ga. June 1, 2015) (decided under former O.C.G.A. § 24-7-707). Expert in pimping, culture, terminology and relationship dynamics. - Trial court did not abuse the court’s discretion in qualifying a witness as an expert in pimping culture, terminology, and relationship dynamics between pimps and prostitutes because the witness testified that the witness was the director of forensic services for Fulton County, Georgia; worked with various law enforcement agencies in Georgia to train them in understanding cycles of abuse regarding sexual exploitation; had trained with the National Center for Missing and Exploited Children to study the effects of sexual exploitation, exploring the dynamics between demeanor of pimps and exploited teenagers; and had studied pimping and prostitution by extensive review of scholarly literature on the subject. Pepe-Frazier v. State, 331 Ga. App. 263, 770 S.E.2d 654, 2015 Ga. App. LEXIS 139 (2015), cert. denied, No. S15C1105, 2015 Ga. LEXIS 412 (Ga. June 1, 2015) (decided under former O.C.G.A. § 24-7-707). Police officer qualified as expert. - Trial court did not abuse the court’s discretion by allowing one of the investigating police officers to testify as an expert regarding interviewing witnesses to a crime because the officer testified that the officer had extensive training in conducting investigations and interviewing witnesses and 11 years of experience doing so and did not offer any opinion as to the truthfulness of the boys, who were the victims of the crime. Smith v. State, 342

Qualification as Expert (Cont’d)

3. Appointment of Expert by Court

Ga. App. 656, 805 S.E.2d 251, 2017 Ga. App. LEXIS 395 (2017) (decided under former O.C.G.A. § 24-7-707). Forensic interviewer as expert. - Although the defendant argued that the trial court should have looked to the forensic interviewer’s level of experience in 2012, when the interviewer conducted the forensic interviews, rather than 2016, when the interviewer gave the interviewer’s expert opinion because the defendant asserted that, due to the interviewer’s inexperience in 2012, the interviewer did not properly conduct the forensic interviews, those criticisms went to the weight and credibility of the interviewer’s testimony about the opinions the interviewer reached based on the allegedly flawed interviews, which were matters for the factfinder, and not to the interviewer’s qualifications as an expert in 2016. Kruel v. State, 344 Ga. App. 256, 809 S.E.2d 491, 2018 Ga. App. LEXIS 15 (2018) (decided under former O.C.G.A. § 24-7-707). Investigator as expert on domestic violence. - Testimony as to a former investigator’s credentials laid an adequate foundation for the investigator to testify about the cycle of domestic violence, why victims are reluctant to report domestic violence, and why they stay with their assailants. Pauley v. State Two Cases, 355 Ga. App. 47, 842 S.E.2d 499, 2020 Ga. App. LEXIS 251 (2020) (decided under former O.C.G.A. § 24-7-707).

Appointment discretionary with court. - Granting or denial of a motion for appointment of expert witnesses lies within the sound discretion of the trial court. Whitaker v. State, 246 Ga. 163, 269 S.E.2d 436, 1980 Ga. LEXIS 1030 (1980) (decided under former Code 1933, § 381710). Appointment of expert witnesses lies within the sound discretion of the trial court and, absent a showing of an abuse of that discretion, the Court of Appeals will not interfere. Stevens v. State, 247 Ga. 698, 278 S.E.2d 398, 1981 Ga. LEXIS 834 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398, 1983 U.S. LEXIS 4712 (1983); Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275, 1981 Ga. App. LEXIS 2149 (1981) (decided under former Code 1933, § 38-1710); Morris v. State, 159 Ga. App. 600, 284 S.E.2d 103, 1981 Ga. App. LEXIS 2717 (1981) (decided under former Code 1933, § 38-1710). Trial court’s comments on witness’s status held prejudicial. - Trial court’s comments, adding the influence of the court’s personal opinion on the expert status of a witness and identifying the witness in common with the court as a statepaid employee, were prejudicial comments on the evidence during a competency trial. Jones v. State, 189 Ga. App. 232, 375 S.E.2d 648, 1988 Ga. App. LEXIS 1358 (1988) (decided under former O.C.G.A. § 24-9-67).

RESEARCH REFERENCES Am. Jur. 2d. 81 Am. Jur. 2d, Witnesses, § 398 et seq. Am. Jur. Trials. Defense Use of Economist, 31 Am. Jur. Trials 287. ALR. Medical negligence in extraction of tooth, established through expert testimony, 18 A.L.R.6th 325. Admissibility in evidence, in civil action, of tachograph or similar paper or tape recording of speed of motor vehicle, railroad locomotive, or the like, 18 A.L.R.6th 613.

Admissibility of expert testimony by nurses, 24 A.L.R.6th 549. Qualification as expert to testify as to findings or results of scientific test concerning DNA matching, 38 A.L.R.6th 439. Admissibility of computer forensic testimony, 40 A.L.R.6th 355. Admissibility of evidence taken from vehicular Event Data Recorders (EDR), Sensing Diagnostic Modules (SDM), or “black boxes”, 40 A.L.R.6th 595. Admissibility of biomedical engineer testimony, 43 A.L.R.6th 327. Necessity and admissibility of expert

testimony to establish malpractice or breach of professional standard of care by architect, 47 A.L.R.6th 303. Qualification as expert to testify in legal malpractice action, 82 A.L.R.6th 281. Admissibility and propriety of use of Abel Assessment for Sexual Interest test, 84 A.L.R.6th 263. Use and effect of Comparative Bullet Lead Analysis (CBLA) in criminal cases, 92 A.L.R.6th 549. Requirement for, and admissibility of, expert testimony to determine whether use of particular amount of force in course of making arrest was unreasonable, 95 A.L.R.6th 641. Propriety of expert historian testimony, 4 A.L.R.7th 4. Admissibility of expert testimony regarding false confessions, 11 A.L.R.7th 6.

Admissibility and effect of evidence of “psychosocial short stature,” “psychosocial dwarfism,” or the like in cases involving parent-child relationship, 13 A.L.R.7th 1. Admissibility of expert testimony on grooming behavior involving sexual conduct with child, 13 A.L.R.7th 9. Admissibility, sufficiency, and other issues concerning expert evidence to prove or disprove shaken baby syndrome, 16 A.L.R.7th 5. Admissibility of expert testimony concerning extremist groups and associated persons and organizations, 39 A.L.R.7th Art. 6. Admissibility and weight, in criminal case, of expert or scientific evidence respecting microscopic analysis of human hair, 43 A.L.R.7th Art. 9.