Hntb Ga. Inc v. Hamilton-king Plant Improvement Co. Inc

• Citation: 697 S.E.2d 770,287 Ga. 641
• Decision Date: 28 June 2010
• Docket Number: No. S09G1219,S09G1224.,S09G1219
• Parties: HNTB GEORGIA, INC.v.HAMILTON-KING et al.Plant Improvement Company, Inc.v.Hamilton-King et al.
• Court: Supreme Court of Georgia

287 Ga. 641

697 S.E.2d 770

HNTB GEORGIA, INC.

v.HAMILTON-KING et al.

Plant Improvement Company, Inc.

v.Hamilton-King et al.

Nos. S09G1219, S09G1224.

Supreme Court of Georgia.

June 28, 2010.

Carlock, Copeland & Stair, Gregory H. Wheeler, Atlanta, Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Richard A. Brown, Jr., Steven G. Blackerby, Brunswick, for appellants.

Savage, Turner, Pinson & Karsman, Brent J. Savage, Martha W. Williams, Robert S. Kraeuter, Kathryn H. Pinckney, Savannah, for appellees.

THOMPSON, Justice.

We granted certiorari to the Court of Appeals in these cases to determine whether the Court of Appeals erred by reversing the trial court's grant of summary judgment in favor of appellants HNTB Georgia, Inc. (HNTB) and Plant Improvement Company, Inc. d/b/a Seaboard Construction Company (Seaboard). See Hamilton-King v. HNTB Georgia, 296 Ga.App. 864, 676 S.E.2d 287 (2009). For the reasons that follow, we reverse.

Appellees Lakeisha Hamilton-King and her brother Justin Hamilton were injured when they were struck by a van in a bridge construction zone on Interstate 95 in south Georgia. Their brother Johnny was killed in the same accident. All three had exited their vehicle after they were involved in a separate collision and their car became disabled on the bridge. A police officer who stopped to help displayed his emergency signals and attempted to slow traffic traveling onto the bridge where appellees were standing. The van, allegedly traveling at a speed close to 70 miles per hour on the darkened interstate highway, did not slow down as it approached the accident site and struck appellees. Justin and Lakeisha, in both her individual capacity and as the administrator of Johnny's estate, sued HNTB, the designer of the bridge-widening project, and Seaboard, the general contractor, for negligence, specifically alleging, inter alia, that HNTB and Seaboard failed to include shoulders in their traffic control plans and failed to implement proper lighting in the bridge construction zone.

Prior to trial, HNTB and Seaboard filed motions to exclude expert testimony challenging the qualifications of appellees' expert witness, Jerome Thomas, a licensed engineer. They asserted both that Thomas lacked the education and experience to testify about construction design standards and that his proffered testimony failed to meet the reliability requirements of OCGA § 24-9-67.1. The trial court granted their motions to exclude and in the absence of admissible expert testimony establishing the standard of care and breach thereof, the trial court also granted their subsequent motions for summary judgment. The Court of Appeals reversed, concluding that the trial court abused its discretion by excluding Thomas' testimony based on its too “ rigid” application of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), a case identifying certain factors relevant in determining the reliability of expert testimony. See Mason v. Home Depot U.S.A., 283 Ga. 271, 658 S.E.2d 603 (2008) (trial court's application of Daubert standards upheld in Georgia case because OCGA § 24-9-67.1 is based on Federal Rule 702, which is based on the holding of Daubert ). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (applying Daubert standard to all expert testimony).

1. The determination of whether “ ‘a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.’ ” Moran v. Kia Motors America, 276 Ga.App. 96, 97, 622 S.E.2d 439 (2005). OCGA § 24-9-67.1(b), which governs the admissibility of expert testimony in civil cases, states that

[i]f scientific, technical, or other specialized knowledge will 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 by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case.

In determining the admissibility of expert testimony, the trial court acts as a gatekeeper, assessing both the witness' qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony. Kumho Tire Co., supra, 526 U.S. at 141, 119 S.Ct. 1167. See McDowell v. Brown, 392 F.3d 1283, 1298(IV) (11th Cir.2004) ( Daubert “impressed a gatekeeping role upon judges, and directed them to ‘ensure that any and all scientific testimony or evidence is not only relevant, but reliable’ ”); Cotten v. Phillips, 280 Ga.App. 280, 286, 633 S.E.2d 655 (2006) (recognizing trial court's role as gatekeeper of expert testimony). Reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert's range of experience and training. Kumho Tire Co., supra, 526 U.S. at 141, 119 S.Ct. 1167; Daubert, supra, 509 U.S. at 592(II)(C), 113 S.Ct. 2786; Moran, supra, 276 Ga.App. at 98, 622 S.E.2d 439. There are many different kinds of experts and many different kinds of expertise Kumho Tire Co., supra, 526 U.S. at 150, 119 S.Ct. 1167, and it follows that the test of reliability is a flexible one, the specific factors “neither necessarily nor exclusively applying to all experts in every case.” Id. at 141, 119 S.Ct. 1167.

Applying these principles to the instant case, we find no abuse of the trial court's discretion in ruling Thomas' testimony inadmissible. After a careful review of Thomas' deposition testimony and the documents upon which he relied, the trial court determined that although Thomas was qualified to testify as an engineering expert,¹ appellees failed to provide any indication of the principles and methods employed by Thomas in reaching his conclusions, rendering them unreliable as defined by OCGA § 24-9-67.1(b)(2) and (3) because they “cannot be validated against accepted standards, tested or reviewed.” ²

Reading the trial court's order as a whole, it is clear the court identified the legal issue relevant to Thomas' testimony, whether the design of the bridge project violated the applicable standard of care,³ and correctly examined Thomas' methodology in light of the Daubert standard. The court specifically noted Thomas' failure to cite any treatise or authority supporting his belief that under readily ascertainable and verifiable standards recognized by practitioners in the field, the construction design plan was below standard. See Daubert, supra, 509 U.S. at 594, 113 S.Ct. 2786 (“Widespread acceptance can be an important factor in ruling particular evidence admissible, and ‘a known technique which has been able to attract only minimal support within the community,’ [cit.], may properly be viewed with skepticism.”); United States v. Downing, 753 F.2d 1224, 1238 (3rd Cir.1985) (reliability assessment permits identification of relevant scientific community and determination of degree of acceptance within that community). It also noted the absence of any testing indicating evidence of similar accidents on interstate highways and the difficulty of ascertaining error rates in the use of engineering judgment. It did so not because it interpreted Georgia law to require evidence of testing or error rates in every case, but in an attempt to identify some foundation for Thomas' conclusion that bridge construction design plans lacking shoulders and/or lighting are inherently defective. The trial court thus chose among reasonable means of evaluating reliability, adjusted and applied the Daubert factors to the circumstances of this case, and ultimately decided that Thomas' conclusions, based solely on his own assertions, were unsupported by either the Daubert factors or any other reasonable reliability criteria. See Mason, supra, 283 Ga. at 279(5), 658 S.E.2d 603 (expert's testimony based solely on personal experience and opinion unsupported by scientific journals or reliable testing procedures was not the product of reliable principles and methods). Nothing in Daubert or OCGA § 24-9-67.1 “requires a [trial] court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.” General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Under the facts of this case, we cannot say the trial court's application of the Daubert factors and decision to exclude Thomas' testimony was a manifest abuse of discretion. Kumho Tire, supra, 526 U.S. at 141-142, 119 S.Ct. 1167 (trial court is granted “the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination”).

2. Appellees argue that Thomas' experience provides a sufficient foundation for his testimony. Thomas conceded, however, that his conclusions are based entirely on his “engineering judgment,” unsupported by any criteria by which the...