Archive for the 'Evidence' Category

Based On Assumption of Risk, Court of Appeals Reverses Verdict for Plaintiff

Recently, the Georgia Court of Appeals reversed a Gwinnett State Court verdict of $317,002 in favor of plaintiffs where the injured plaintiff “was clearly aware of the potential danger of injury” and “deliberately chose to operate the vehicle despite the risk.” Yamaha Motor Corp., USA v. McTaggart, 2011 WL 5529843 (Ga.App. Nov. 15, 2011). There, the plaintiff was injured when the vehicle, a Yamaha Rhino off-road vehicle with no doors or windows, rolled over onto his leg. Plaintiffs (injured party and wife) argued that the vehicle was defective because it did not have a door; however, the injured plaintiff testified that the vehicle was useful to him specifically because of the absence of a door for easy ingress and egress in his capacity as a gravedigger. He also testified he understood the warnings and instructions posted on the vehicle, had read the operator’s manual, and had significant experience with off-road vehicles prior to the purchase of the subject vehicle. The Court held that because the injured plaintiff chose “a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not,” the defendant should be granted its directed verdict as the injured plaintiff assumed the risk of his injuries as a matter of law.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.

Pain Is Not Enough!

An employee who complained of pain from loading heavy crates of chickens for long hours is not entitled to compensation benefits, as held in Herman Miller v. Tip Top Poultry.  There, the Administrative Law Judge ruled in favor of the employer, despite the employee’s claim that the cumulative effect of his work caused a gradual deterioration of his condition to the point of disability. 
The evidence in Miller, which at times was contradictory, showed at most that the activities caused the employee pain.  But the court found that the employee ceased working because of his wife’s poor health and his need to be with her, instead of his physical condition.  Further, the medical evidence did not substantiate any physiological problems, only subjective complaints.  Without an injury proven by a preponderance of competent and credible evidence, the employee was not entitled to workers’ compensation benefits. Pain in and of itself does not constitute a compensable injury.  Johnson v. Boston-Old Colony Ins. Co., 106 Ga. App. 410 (1962).  Therefore, the claim for medical and indemnity benefits was denied in its entirety.

For more information, please contact Catherine Dellinger Buckley at (404) 633-9230.

Proposal Seeks to Modify and Clarify Rules Regarding Expert Testimony

The Georgia State Bar has recommended changes to the Georgia Evidence Code that will affect the introduction of expert testimony at trial.  This proposal comes in response to several concerns about the existing statute on the admissibility of expert testimony at § 24-9-67.1.

Prior to March 2005, Georgia’s law on the screening of scientific expert testimony was tangled and untidy.  Georgia then adopted § 24-9-67.1 to provide order to the law by applying the federal Daubert line of cases (codified in Federal Rule 702) to civil cases in Georgia, and applying Harper v. State, 249 Ga. 519 (1982) and Riley v. State, 278 Ga. 677 (2004) to criminal cases.  The State Bar believes, however, that the existing statute violates Federal Rule of Evidence 703 and has other deficiencies.

In response, the State Bar’s proposed new rule (24-7-702(b)) provides a single standard for both civil and criminal cases.  Reinstating the Harper standards, a party would be able to challenge expert testimony based on scientific theories or techniques that have not “reached a scientific stage of verifiable certainty.”  Further, the proposed rule requires an expert’s testimony to be “based on sufficient facts or data,” and “the product of reliable principles and methods,” and the witness must have “applied the principles and methods reliably to the facts of the case.” § 24-7-702 (b).  As Georgia has an interest in not allowing evidence that would not be admissible in other states, the comments to the proposed rule note that a court should not look to federal cases to compare Georgia’s evidentiary standards, especially considering that Daubert is not the law in most states.

Another change in proposed Rule 24-7-702 is to set a 14 day time frame after the close of discovery for bringing motions to exclude expert testimony to allow sufficient time to find a new expert, if needed.  However, “[b]ecause the rules of discovery are different in criminal cases and there often is very little time between notice that an expert will testify and the trial date,” the comments provide, “no time limit is recommended for bringing a [motion to exclude expert testimony] in criminal cases.”

Finally, the proposed rule establishes a new standard for the trial judge to use in excluding expert testimony.  Specifically, rather than using his or her own judgment as to whether the expert’s testimony satisfies the requirements of section (b) of the proposed rule, the judge will decide the motion on whether a reasonable jury could decide so.

Text of the proposed changes and the comments are available on pages 76-80 of the Report of the Evidence Study Committee of the State Bar of Georgia, available at

While the proposed changes have not been introduced to the state legislature, the acceptance by the State Bar signals that the proposition could soon move in that direction.  As many unanswered questions remain, and will continue to arise throughout the legislative rulemaking process, we will continue to update any new developments concerning these proposed new rules of evidence.


For more information, please contact Tim Buckley at (404) 633-9230.

Ruling Determines Speculative Expert Testimony Considered for MSJ

Georgia Courts may consider an expert opinion, even where arguments that some or part of the testimony it is purely speculative or conjectural exist. In a 4 to 3 decision, the Georgia Supreme Court in Layfield v. Department of Transportation, 280 Ga. 848, 632 S.E.2d 135 (2006) held that the crucial factor is whether the expert opinion is wholly speculative. The dissenting justices worried that this creates an opportunity to deny summary judgment when the expert testimony is conclusory and, therefore, inadmissible. The majority opined, instead, that where there exists objective evidence underlying the expert’s opinions, it is up to the jury to determine the weight to be given to such an opinion. Of note, this decision addressed facts pre-dating Georgia’s statutory adoption of the Daubert standards for admissibility and consideration of so called expert testimony.

For more information, please contact Tim Buckley at (404) 974-4570.

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