Trial Notebook: Daubert

Administrative Law Judge in Thomas Eaton v. University of Georgia Pulmonary Air Travel Venous Thromboembolism case. Heard before Judge William Murray in March of 2006 concluded that Daubert did not apply because there was no pre-trial motion. Citing Bailey v. Edmundson, 280 Ga. 528, 630 S.E. 2d (2006) wherein the Georgia Supreme Court ruled that an objection under O.C.G.A. § 24-9-67.1(a) or (b) is untimely if made "prior to testimony, but after trial has began". Additionally the Court of Appeals held in Ambling Management Company v. Purdy, 283 Ga. App. 21, 640 S.E.2d 620 (2006) that a motion to exclude the plaintiff's expert testimony made on the Friday preceding the Monday trial was untimely.

Under Board Rules there is no "final pre-trial conference in workers' compensation claims unless specifically scheduled as such". The usual method of filing a motion is performed when the party files a WC-102(d). There is no Board Rule dispositive of the issue of timely filing in Daubert.

The Administrative Law Judge cited O.C.G.A. § 34-9-102(e)(2) which provides that any medical reports or documents signed and dated by examining or treating physician or other duly qualified medical practitioner shall be admissible in evidence insofar as it purports to represent the history, examination, diagnosis, treatment, prognosis or opinion relevant to any medical issue by the person signing the report as if the person were present at the hearing and testifying as a witness, subject to the right of any party to object to the admissibility of any portion of the report as subject to the right of an adverse party to cross-examine the person signing the report and provide rebuttal testimony within the time allowed by the Administrative Law Judge. Where two statutes overlap, the "more specific statute" will usually trump the more general statute. See Dixon v. State, 278 Ga. 4, 496 S.E.2d 147 (2004). All cited in Thomas Eaton v. University of Georgia, date of accident 3/19/2006 Opinion of June 13, 2007 by William Murray. Found under Daubert.

Challenge to Functional Capacity Exam

See Brief filed in Superior Court of Whitfield County in Pamela Ewers v. Thomas Bowman, Doctor of Podiatry Medicine, Civil Action File No. 87, 046-B. Long discussion on the current Georgia Statute O.C.G.A. § 24-9-67.1(f) and its challenge to Functional Capacity Exams. This involves the admissibility of the ergo science FCE.

Need Help? We're Here For You.

Send us a message or call us now at 404.815.1776!