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. The police officers who stopped to assist displayed their emergency signals and attempted to slow traffic traveling onto the bridge where Lakeisha, Justin, and Johnny were standing. The van which struck the three siblings was allegedly traveling at close to 70 mph on the darkened interstate highway and did not slow down as it approached. Justin and Lakeisha, the plaintiffs, sued HNTB, the designer of the bridge widening project, and Seaboard Construction Company (“Seaboard”), the general contractor, for negligence, alleging that HNTB and Seaboard failed to include shoulders in their traffic control plan and failed to implement proper lighting in the bridge construction zone.
Prior to trial, HNTB and Seaboard filed motions to exclude expert testimony presented by the plaintiffs’ engineer expert, Jerome Thomas. The trial judge granted their motion and excluded Mr. Thomas’ testimony and, because there was no admissible expert testimony establishing the standard of care and breach of that standard, granted summary judgment to the defendants. The Georgia Court of Appeals reversed the decision of the trial court and found that the trial judge had abused his discretion by excluding Mr. Thomas’ testimony based on a “too rigid” application of Daubert v. Merrell Dow Pharmaceuticals, the leading United States Supreme Court case identifying certain factors relevant in determining the reliability of expert testimony. Fortunately, the Georgia Supreme Court disagreed.
The Supreme Court reinforced the principle that the trial judge’s decision as to whether to allow expert testimony to be presented to a jury should not be disturbed by an appellate court unless there has been a “manifest abuse of discretion.” The trial court acts as a “gate keeper” in assessing both an expert’s qualifications to testify in a particular area and the relevancy and reliability of that testimony.
Because there are many types of experts and many different kinds of expertise, the Supreme Court agreed that the test of reliability is a flexible one, although the trial judge should consider 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.
The Supreme Court believed that the trial judge in this case had performed a careful review of Mr. Thomas’ deposition testimony and the documents upon which he relied in determining that Mr. Thomas, although qualified to testify as an engineering expert, failed to provide any indication of the principles and methods he used in reaching his conclusions that the defendants should have included shoulders and temporary lighting in the construction traffic control plan.
Mr. Thomas admitted that he had never before designed, reviewed or evaluated a construction plan for a similar bridge construction project and had never been qualified as an expert in any case involving bridge construction design. He could not cite a single instance in his years of experience where a construction plan called for shoulders or lighting during construction. He conceded that the Manual on Uniform Traffic Control Devices, the basic standard in the industry for traffic control, did not require shoulders or lighting on the subject bridge and that nothing in the standards promulgated by the American Association of State Highway and Transportation Officials required lighting or shoulders during construction. Mr. Thomas could not cite any other publication, standard, statute, or regulation, federal or state, which set forth an industry standard requiring the use of shoulders or lighting on this bridge construction project. In other words, Mr. Thomas’ testimony was based entirely on his personal “engineering judgment.”
This opinion provides excellent guidance for any trial judge questioning his or her authority to exclude expert testimony and provides a road map for how to challenge expert testimony. The Supreme Court has made it very clear that it is a trial judge’s duty to be a gate keeper and to make sure that only reliable and valid expert testimony is presented to a jury.
Please let me know if you would like a copy of this opinion.
Michael
