Georgia Court of Appeals Affirms Rejection of Expert, Dismissal of Claims Under Daubert

Last month, the Georgia Court of Appeals affirmed a trial court’s decision excluding a plaintiff’s expert testimony and granting summary judgment for the defendant, LG Electronics, Inc. (“LG”), in a case involving allegations that the plaintiff’s LG television exploded, causing a house fire, which resulted in the death of the plaintiff’s husband and son. See Cash et al., v. LG Electronics, Inc. et al., No. A17A0878 (Ga. Ct. App. Sept. 8, 2017). Applying Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993) and its progeny, which have been drawn upon by Georgia courts, the appellate court agreed with the trial court’s finding that the plaintiff’s expert’s opinion was not based on sufficient facts or reliable principles and methods, and thus subject to exclusion. Id. at *1. Without the plaintiff’s causation expert, the trial court found that the plaintiff had failed to present competent and admissible evidence to show that any defect in the television caused the fire. Id. The Court of Appeals affirmed both decisions.

The facts of the case are undeniably tragic. On the morning of July 6, 2011, the plaintiff, Debbie Cash, observed a green-black smoke coming from the living room of her house shortly after her son had turned on their LG television. See id. Within minutes, the entire entertainment center in the room was on fire. See id. Ms. Cash and her daughter were able to escape from the house, but the fire was “too extensive” and her husband and son were unable to escape. Id. After an investigation, the fire department determined that “the fire started in the vicinity of the entertainment center, but they were unable to determine the exact origin of the fire.” Id.

The plaintiff brought a lawsuit against LG for claims sounding in negligence and strict liability. According to the plaintiff’s causation expert, Judd W. Clayton, the internal component in the LG television’s power supply board failed due to “a manufacturing defect or mechanical damage, triggering a chain reaction that caused the fire.” Id. LG moved to exclude this expert testimony, arguing that it was inadmissible because, as  Mr. Clayton admitted, he had manipulated multiple steps in his experiments in order to replicate the fire.  The trial court excluded Mr. Clayton’s testimony, finding that it failed to satisfy the admissibility standards under Daubert. Id. The appellate court agreed.

The Court of Appeals explained that OCGA § 24-7-702 governs the admissibility of expert testimony and that the statute requires a trial court to act as “gatekeeper to ensure the relevance and reliability of expert testimony.” Id. at *2 (citing Scapa Dryer Fabrics, Inc. v. Knight, 299 Ga. 286, 289 (788 SE2d 421) (2016)). In order to admit expert testimony under this statute, a trial court must consider: “(a) the qualifications of the expert; (b) the reliability of the testimony; and (c) the relevance of the testimony.” Id. Because the issue of whether expert testimony should be admitted under OCGA § 24-7-702 is a “question committed to the sound discretion of the trial court” (see Scape Dryer Fabrics, Inc. v. Knight, 299 Ga. at 289), the Court of Appeals stated that it would not disturb the decision “absent a manifest abuse of discretion.” Id. at *1. (citing Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 279 (5) (658 SE2d 603) (2008)).

The Court of Appeals found that the trial court did not abuse its discretion in excluding the plaintiff’s causation expert because there was just “too great an analytical gap between the data and the opinion proffered.” Id. at *3 (citing Gen. Elec. Co. v. Joiner, 522 U. S. 136, 146 (III) (118 SCt 512, 139 LE2d 508) (1997); HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 644 (1) (697 SE2d 770) (2010)). The Court of Appeals summarized the experiments conducted by the expert, which involved attempts to reverse engineer the cause of the fire. The Court found that the methodology was unreliable under Daubert since “[a]t every step of the expert’s experiment, the results failed to trigger the next event of his expected chain reaction unless he forced the result he desired and proceeded to the next step.” Id. at *4. In addition, the Court found that there was no evidence that the circumstances Mr. Clayton created in his experiment actually existed in the television on the day of the fire. See id. at *5. Moreover, the Court found that his methodology had not been peer-reviewed. See id. at *4. In fact, in response to questions regarding whether his methodology had been accepted by the scientific community, Mr. Clayton baldly replied that it “will pass muster.” Id.

The Cash decision highlights the importance of an expert employing reliable methodology in reaching a conclusion, regardless of whether the opinion ultimately is correct. For instance, the Court of Appeals held that while the use of process of elimination may be a reliable means of ascertaining the source of a fire, “such eliminations must be made through reliable scientific investigation and testing, which the trial court found was not done in this case.” Id. at *5(emphasis added)(citing Michigan Millers Mut. Ins. Corp. v. Benfield, 140 F3d 915, 921 (II) (A) (11th Cir. 1998)). Further, in response to plaintiff’s argument that the trial court’s concerns about the expert’s testing methodology go to the weight and credibility of the testimony rather than the admissibility, the Court of Appeals explained that “[t]he issue is not whether the expert’s opinion about the source of the fire is correct, but rather whether the methodology he employed to reach that conclusion is reliable. Where, as here, the analytical gap between the data and the expert’s opinion is too remote, the trial court does not abuse its discretion by excluding the expert’s testimony.” Id. (emphasis added) (citing Gen. Elec. Co. v. Joiner, 522 U. S. at 146).

As always, practitioners must remember that when selecting expert witnesses, preparing them to testify at trial, and defending their scientific opinion, the Daubert admissibility standards must not be overlooked.