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Powell v. Variety Wholesalers, Inc.

United States District Court, S.D. Georgia, Statesboro Division

January 31, 2019

JANICE POWELL, Plaintiff,
v.
VARIETY WHOLESALERS, INC., et ah, Defendants.

          ORDER

          Christopher L. Ray United States Magistrate Judge

         Before 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 PREJUDICE.[1]

         BACKGROUND

         This 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 2.

         Plaintiff 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.

         ANALYSIS

         As an 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 experience.

         In 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 follows:

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.

Rule 702.

         In this 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 whether

(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.

         For the 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 ...


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