United States District Court, S.D. Georgia, Statesboro Division
Christopher L. Ray United States Magistrate Judge
the Court is plaintiffs Motion to Disqualify H. Clark Deriso,
M.D. as Expert Physician. Doc. 43. For the following reasons,
plaintiffs motion is DENIED WITHOUT
case arises from a slip and fall on March 18, 2015 in
Sylvania, Georgia. Doc. 43 at 1. Plaintiff alleges that she
sustained a "TFC" (undescribed in the briefs) to
her right wrist and a ligamentous injury with aggravation to
the degenerative condition in her cervical spine.
Id. She underwent a wrist arthroscopy with TFC
debridement, a right wrist wafer restriction of the distal
ulna, and an anterior cervical disc fusion. Id. She
ultimately filed suit against defendant-the owner and
operator of the store in which she fell. Id., doc.
1. Defendant later identified H. Clark Deriso, M.D. as an
expert witness pursuant to Fed. R. Civ. Pro. 26(a)(2). Doc.
21. Dr. Deriso is licensed to practice medicine in Georgia
and has worked as an orthopedic surgeon since 1975. Doc. 55-1
at 1. According to defendant, he was "retained ... as an
expert in this matter to review medical records and
diagnostic studies, and to provide opinions concerning the
medical causation of plaintiffs alleged wrist and cervical
spine injuries." Doc. 55 at 2. Dr. Deriso was deposed
after he was identified as an expert witness. Id. at
objects to this expert on the grounds that Dr. Deriso's
opinion fails to comply with the requirements of Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), fails to comply with O.C.G.A. § 24-7-702's
requirement that an expert testifying in a medical
malpractice action have practiced in that specialty for three
of the past five years, and fails to adequately disclose
those cases in which Dr. Deriso had previously offered expert
opinions. See doc. 43 at 1-3.
initial matter, plaintiffs argument regarding O.C.G.A. §
24-7-702 holds no water here. That statute sets forth
requirements for experts testifying in medical malpractice
cases. Id. This case does not involve medical
malpractice. As a result, O.C.G.A. § 24-7-702 does not
apply. See, e.g., Armstead v. Allstate Prop. & Cas.
Ins. Co., 2016 WL 928722, at *5 (N.D.Ga. Mar. 11, 2016)
(discussing whether Georgia's more restrictive rules on
the presentation of expert testimony applies in non-medical
malpractice cases). As a result, the Court turns to
plaintiffs two other arguments. Namely, that Dr. Deriso's
testimony is insufficient under Federal Rule of Evidence 702
and that he failed to adequately disclose his past expert
Daubert, the U.S. Supreme Court interpreted Rule 702
stating that the rule "compels the district courts to
perform the critical 'gatekeeping' function
concerning the admissibility of expert scientific
evidence." United States v. Frazier, 387 F.3d
1244, 1260 (11th Cir. 2004) (citing Daubert, 509
U.S. at 589 n.7, 597). The U.S. Supreme Court later held that
"Daubert's general holding-setting forth
the trial judge's general datekeeping'
obligation-applies not only to testimony based on
'scientific' knowledge, but also to testimony based
on 'technical' and 'other specialized'
knowledge." Kumho Tire Co. v. Carmichael, 526
U.S. 137, 141 (1999) (citing Fed. R. Evid. 702).
Having adopted these decisions, amended Rule 702 provides as
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
circuit, the Court applies a three-pronged inquiry to
determine whether an expert's testimony complies with
Rule 702 and Daubert. The Court must determine
(1) the expert is qualified to testify competently regarding
the matters he intends to address; (2) the methodology by
which the expert reaches his conclusions is sufficiently
reliable as determined by the sort of inquiry mandated in
Daubert; and (3) the testimony assists the trier of fact,
through the application of scientific, technical, or
specialized expertise, to understand the evidence or to
determine a fact in issue.
Frazier, 387 F.3d at 1260 (citations omitted). The
proponent of the expert opinion bears the burden of
establishing qualification, reliability, and helpfulness by a
preponderance of the evidence. Daubert, 509 U.S. at
592, n. 10.
first prong, "experts may be qualified in various ways.
While scientific training or education may provide possible
means to qualify, experience in a field may offer another
path to expert status." Frazier, 387 F.3d at
1260-61; see also Fed. R. Evid. 702 (a witness may
be qualified as an ...