05 LC
14 9022
House
Bill 234
By:
Representatives Hatfield of the
177th,
Keen of the
179th,
Channell of the
116th,
Parrish of the
156th,
Rice of the
51st,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
revise provisions of the Official Code of Georgia Annotated relating to the use
of experts in judicial proceedings; to amend Title 24 of the Official Code of
Georgia Annotated, relating to evidence, so as to change provisions relating to
when the opinions of experts are admissible; to provide that an expert must meet
certain qualifications in order to execute an affidavit for use in a
professional malpractice action; to amend Title 9 of the Official Code of
Georgia Annotated, relating to civil practice, so as to change provisions
relating to affidavits in professional malpractice cases; to eliminate certain
provisions excusing noncompliance with certain deadlines; to provide for other
matters related to the foregoing; to provide for an effective date and
applicability; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
24 of the Official Code of Georgia Annotated, relating to evidence, is amended
by striking Code Section 24-9-67, relating to expert opinion evidence, and
inserting in its place a new Code section to read as follows:
"24-9-67.
The
opinions of experts on any question of science, skill, trade, or like questions
shall always be admissible; and such opinions may be given on the facts as
proved by other witnesses.
(a)
If scientific, technical, or other specialized knowledge will assist the trier
of fact in any cause of action to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or
otherwise, if: (1) the testimony is based upon sufficient facts or data; (2) the
testimony is the product of reliable principles and methods; and (3) the witness
has applied the principles and methods reliably to the facts of the
case.
(b)
The facts or data in the particular case upon which an expert bases an opinion
or inference may be those perceived by or made known to the expert at or before
the hearing or trial. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence in order for the opinion or inference
to be admitted. Facts or data that are otherwise inadmissible shall not be
disclosed to the jury by the proponent of the opinion or inference unless the
court determines that their probative value in assisting the jury to evaluate
the
expert́s
opinion substantially outweighs their prejudicial effect.
(c)
Upon motion of a party, the court shall hold a pretrial hearing to determine
whether the witness qualifies as an expert and whether the
expert́s
testimony satisfies the requirements of this Code section. Such hearing and
ruling shall be completed no later than the pretrial conference contemplated
under Code Section 9-11-16, or 45 days prior to the date set for
trial.
(d)
In interpreting and applying this Code section, the courts of this state may
draw from the opinions of the United States Supreme Court in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner,
522 U.S. 136 (1997), and Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999),
and other cases in federal courts applying the standards announced by the United
States Supreme Court in these cases.
(e)
An affiant must meet the requirements of this Code section in order to be
competent to testify as an expert for purposes of the affidavit required under
Code Section
9-11-9.1."
SECTION
2.
Title
9 of the Official Code of Georgia Annotated, relating to civil practice, is
amended by striking Code Section 9-11-9.1, relating to affidavits in
professional malpractice cases, and inserting in its place a new Code section to
read as follows:
"9-11-9.1.
(a)
In any action for damages alleging professional malpractice against a
professional licensed by the State of Georgia and listed in subsection
(f)(d)
of this Code section or against any licensed health care facility alleged to be
liable based upon the action or inaction of a health care professional licensed
by the State of Georgia and listed in subsection
(f)(d)
of this Code section, the plaintiff shall be required to file with the complaint
an affidavit of an expert competent to testify
pursuant to
Code Section 24-9-67, which affidavit
shall set forth specifically at least one negligent act or omission claimed to
exist and the factual basis for each such claim.
(b)
The contemporaneous filing requirement of subsection (a) of this Code section
shall not apply to any case in which the period of limitation will expire or
there is a good faith basis to believe it will expire on any claim stated in the
complaint within ten days of the date of filing and, because of such time
constraints, the plaintiff has alleged that an affidavit of an expert could not
be prepared. In such cases, the plaintiff shall have 45 days after the filing of
the complaint to supplement the pleadings with the affidavit. The trial court
may, on motion, after hearing and for good cause extend such time as it shall
determine justice requires. If an affidavit is not filed within the period
specified in this subsection or as extended by the trial court and the defendant
against whom an affidavit should have been filed alleges, by motion to dismiss
filed contemporaneously with its initial responsive pleading that the plaintiff
has failed to file the requisite affidavit, the complaint is subject to
dismissal for failure to state a claim.
(c)
This Code section shall not be construed to extend any applicable period of
limitation, except that if the affidavit is filed within the period specified in
this Code section, the filing of the affidavit after the expiration of the
statute of limitations shall be considered timely and shall provide no basis for
a statute of limitations defense.
(d)(b)
If a plaintiff files an affidavit which is
allegedly
alleged to
be
defective,
and
by
the defendant to whom it pertains
alleges,
with specificity,
by
in
a motion to dismiss filed
contemporaneously with its initial responsive pleading,
that said
affidavit is defective, the
plaintiff́s
complaint is subject to dismissal for failure to state a
claim,
except that
the.
The plaintiff may cure the alleged defect
by amendment
made
pursuant to Code Section 9-11-15 within 30 days of service of the motion
alleging that the affidavit is defective.
The trial
court may, in the exercise of its discretion, extend the time for filing said
amendment or response to the motion, or both, as it shall determine justice
requires.
(e)(c)
If a plaintiff fails to file an affidavit as required by this Code section and
the defendant raises the failure to file such an affidavit by motion to dismiss
filed contemporaneously with its initial responsive pleading, such complaint
shall not be subject to the renewal provisions of Code Section 9-2-61 after the
expiration of the applicable period of
limitation,
unless a court determines that the plaintiff had the requisite affidavit within
the time required by this Code section and the failure to file the affidavit was
the result of a mistake.
(f)(d)
The professions to which this Code section applies are:
(1)
Architects;
(2)
Attorneys at law;
(3)
Certified public accountants;
(4)
Chiropractors;
(5)
Clinical social workers;
(6)
Dentists;
(7)
Dietitians;
(8)
Land surveyors;
(9)
Medical doctors;
(10)
Marriage and family therapists;
(11)
Nurses;
(12)
Occupational therapists;
(13)
Optometrists;
(14)
Osteopathic physicians;
(15)
Pharmacists;
(16)
Physical therapists;
(17)
Physicianś
assistants;
(18)
Professional counselors;
(19)
Professional engineers;
(20)
Podiatrists;
(21)
Psychologists;
(22)
Radiological technicians;
(23)
Respiratory therapists; or
(24)
Veterinarians."
SECTION
3.
This
Act shall become effective July 1, 2005. Section 1 of this Act shall apply with
respect to actions pending on that date as well as actions filed on or after
that date. Section 2 of this Act shall apply with respect to actions filed on or
after that date.
SECTION
4.
All
laws and parts of laws in conflict with this Act are repealed.