In the Supreme Court of Georgia
Decided: July 13, 2015
S14G1192. DUBOIS et al. v. BRANTLEY et al.
BLACKWELL, Justice.
This case presents a question about the qualification of expert witnesses
under OCGA § 24-7-702 (“Rule 702”), specifically, what sort of experience is
required of a practicing surgeon who is offered as an expert witness in a medical
malpractice case to opine that another surgeon breached the applicable standard
of medical care in the course of performing a surgical procedure. In Brantley v.
Dubois, 327 Ga. App. 14 (755 SE2d 351) (2014), the Court of Appeals held that
a surgeon was not qualified as a matter of law under Rule 702 (c) (2) (A) to give
expert testimony about negligence in connection with a laparoscopic procedure
to repair an umbilical hernia because he had not performed more than one
laparoscopic procedure to repair an umbilical hernia in the last five years,
notwithstanding that the surgeon had performed many other abdominal
laparoscopic procedures during that time. We issued a writ of certiorari to
consider whether the Court of Appeals understood Rule 702 (c) (2) (A)
correctly, and we now conclude that it did not. Accordingly, we reverse the
judgment of the Court of Appeals.
1. David Dubois was diagnosed with an umbilical hernia, and in March
2011, he underwent a laparoscopic procedure to repair it. Dr. Damon Brantley
performed the laparoscopic procedure at a Southeast Georgia Health System
hospital in Camden County, and within hours, Dubois was discharged. A couple
of days later, however, Dubois returned to the hospital with a fever and other
symptoms, and he soon was diagnosed with acute pancreatitis. An exploratory
laparotomy revealed that his pancreas had been punctured, which was the likely
cause of the pancreatitis. In the days that followed, additional complications
arose, including respiratory failure, acute renal failure, and sepsis. Dubois
survived these complications, but he spent several days in a coma, was
hospitalized in intensive care for almost a month, and had to undergo a number
of additional surgeries to repair the damage to his pancreas.
In January 2012, Dubois and his wife filed a lawsuit against Dr. Brantley
and Southeast Georgia Health, and they contend that Dr. Brantley negligently
2
punctured his pancreas with a trocar1 in connection with the laparoscopic
procedure to repair his umbilical hernia. Dr. Brantley admits that he inserted a
trocar in the upper abdomen to begin the procedure, and he concedes that
attributing the puncture of the pancreas to his use of this trocar is a reasonable
hypothesis. Dr. Brantley disputes, however, that his insertion of the primary
trocar was a breach of the applicable standard of medical care.
To show that Dr. Brantley was negligent in his use of the trocar, Dubois
and his wife offered Dr. Steven E. Swartz as an expert witness. Dr. Swartz is a
practicing general surgeon, and in his practice, he uses trocars to perform a
variety of abdominal laparoscopic procedures. Although Dr. Swartz has
performed laparoscopic procedures to repair umbilical hernias in the past, he
testified that he no longer performs that particular sort of laparoscopic
procedure, explaining that he now repairs umbilical hernias by open surgery
1
A trocar is a sharp, pointed instrument with a tubular shaft, which is used to puncture
the wall of a body cavity. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, p. 1748 (28th
ed. 1994). In an abdominal laparoscopic procedure, the surgeon typically makes one or more
small incisions in the abdomen, and trocars are inserted through these incisions to penetrate
the peritoneum and “provide airtight ports through which instruments may be passed into the
abdominal cavity. The trocars also allow surgeons to inflate the patient’s abdominal cavity
in order to provide space for the doctor to operate.” Applied Med. Resources Corp. v. Tyco
Healthcare Group, 534 Fed. Appx. 972, 973 (I) (Fed. Cir. 2013).
3
instead.2 At his deposition, Dr. Swartz admitted that he has performed no more
than one laparoscopic procedure to repair an umbilical hernia in the past five
years.3 Nevertheless, Dr. Swartz opined that, if performed within the applicable
standard of medical care, no abdominal laparoscopic procedure — whether to
repair an umbilical hernia or for any other purpose — should involve a trocar
puncturing the pancreas unless the pancreas is located unusually, anatomically
speaking. And Dr. Swartz saw no indication that Dubois has an unusually
located pancreas.
To comply with the statutory requirement that an affidavit of a competent
expert accompany a complaint for medical or other professional malpractice,4
2
Dr. Swartz has offered no opinion in this case that it always is too dangerous to
repair an umbilical hernia by a laparoscopic procedure, and indeed, Dr. Swartz admitted that
a number of his own partners continue to perform laparoscopic umbilical hernia repairs. Dr.
Swartz explained that he does not perform that sort of laparoscopic procedure because he
more consistently has experienced better results with open surgeries to repair umbilical
hernias. Dr. Swartz faults Dr. Brantley not for choosing to use a laparoscopic procedure on
Dubois, but instead for the way in which Dr. Brantley inserted a trocar in the upper abdomen
to begin the procedure.
3
Dr. Swartz testified that he was uncertain whether he had performed any
laparoscopic procedures to repair umbilical hernias in the past five years. At most, he said,
he might have performed one such procedure.
4
This requirement is found in OCGA § 9-11-9.1, which provides:
(a) In any action for damages alleging professional malpractice against:
(1) A professional licensed by the State of Georgia and listed in
subsection (g) of this Code section;
(2) A domestic or foreign partnership, corporation, professional
4
corporation, business trust, general partnership, limited
partnership, limited liability company, limited liability
partnership, association, or any other legal entity alleged to be
liable based upon the action or inaction of a professional
licensed by the State of Georgia and listed in subsection (g) of
this Code section; or
(3) 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 (g) of this Code
section,
the plaintiff shall be required to file with the complaint an affidavit of an
expert competent to testify, 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 affidavit filing requirement pursuant to 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 the
complaint and, because of time constraints, the plaintiff has alleged that an
affidavit of an expert could not be prepared. In such cases, if the attorney for
the plaintiff files with the complaint an affidavit in which the attorney swears
or affirms that his or her law firm was not retained by the plaintiff more than
90 days prior to the expiration of the period of limitation on the plaintiff’s
claim or claims, the plaintiff shall have 45 days after the filing of the complaint
to supplement the pleadings with the affidavit. The trial court shall not extend
such time for any reason without consent of all parties. If either affidavit is not
filed within the periods specified in this Code section, or it is determined that
the law firm of the attorney who filed the affidavit permitted in lieu of the
contemporaneous filing of an expert affidavit or any attorney who appears on
the pleadings was retained by the plaintiff more than 90 days prior to the
expiration of the period of limitation, the complaint shall be dismissed 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 affidavits are filed within the periods specified
in this Code section, the filing of the affidavit of an expert after the expiration
of the period of limitations shall be considered timely and shall provide no
basis for a statute of limitations defense.
(d) If a complaint alleging professional malpractice is filed without the
contemporaneous filing of an affidavit as permitted by subsection (b) of this
5
Code section, the defendant shall not be required to file an answer to the
complaint until 30 days after the filing of the affidavit of an expert, and no
discovery shall take place until after the filing of the answer.
(e) If a plaintiff files an affidavit which is allegedly defective, and the
defendant to whom it pertains alleges, with specificity, by motion to dismiss
filed on or before the close of discovery, that said affidavit is defective, the
plaintiff’s complaint shall be subject to dismissal for failure to state a claim,
except that the plaintiff may cure the alleged defect by amendment 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.
(f) 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.
(g) The professions to which this Code section shall apply are:
(1) Architects;
(2) Attorneys at law;
(3) Audiologists;
(4) Certified public accountants;
(5) Chiropractors;
(6) Clinical social workers;
(7) Dentists;
(8) Dietitians;
(9) Land surveyors;
(10) Marriage and family therapists;
(11) Medical doctors;
(12) Nurses;
(13) Occupational therapists;
(14) Optometrists;
(15) Osteopathic physicians;
(16) Pharmacists;
(17) Physical therapists;
(18) Physicians’ assistants;
(19) Podiatrists;
6
Dubois and his wife filed an affidavit by Dr. Swartz with their complaint, and
they later amended their complaint by filing a second affidavit by Dr. Swartz.5
Following the deposition of Dr. Swartz, Dr. Brantley and Southeast Georgia
Health moved to dismiss the complaint or, in the alternative, for summary
judgment, contending that Dr. Swartz was not competent to offer expert
testimony that Dr. Brantley breached the applicable standard of medical care in
connection with a laparoscopic procedure to repair an umbilical hernia simply
because Dr. Swartz has not regularly performed laparoscopic procedures to
(20) Professional counselors;
(21) Professional engineers;
(22) Psychologists;
(23) Radiological technicians;
(24) Respiratory therapists;
(25) Speech-language pathologists; or
(26) Veterinarians.
5
The law permits a plaintiff to amend his pleadings with the filing of an amended
affidavit. See Gala v. Fisher, 296 Ga. 870, 874-875 (770 SE2d 879) (2015). With the original
complaint and affidavit, Dubois and his wife pointed generally to negligence in the
performance of the laparoscopic repair of his umbilical hernia as the basis for their claims,
although the allegations certainly were broad enough to include any negligence in the
insertion of the primary trocar. By amending their pleadings with a second affidavit,
however, Dubois and his wife clarified that their allegations of negligence specifically
concern the insertion of the trocar.
7
repair umbilical hernias in the past five years. The trial court denied the motion,
and Dr. Brantley and Southeast Georgia Health appealed.6
The Court of Appeals reversed. In its opinion, the Court of Appeals
acknowledged that the qualification of an expert witness under Rule 702 is
generally a matter committed to the sound discretion of the trial court. See
Brantley, 327 Ga. App. at 16. The Court of Appeals held, however, that the trial
court in this case abused its discretion when it qualified Dr. Swartz as an expert
witness. The Court of Appeals considered whether Dr. Swartz had participated
in laparoscopic procedures to repair umbilical hernias in the past five years, and
finding that he had been involved at most in only one such procedure, the Court
of Appeals concluded that he was not qualified as a matter of law under Rule
702 (c) (2) (A) to offer any opinion about negligence in connection with a
laparoscopic procedure to repair an umbilical hernia:
Here, there is only speculation that Dr. Swartz performed the
procedure in issue in the three to five years prior to the surgery.
Even if we accepted that Dr. Swartz performed one laparoscopic
umbilical hernia repair in the requisite time period, there otherwise
is no showing demonstrating a significant familiarity with the same,
6
When the trial court denied the motion, it issued a certificate of immediate review.
Dr. Brantley and Southeast Georgia Health timely filed an application for leave to take an
interlocutory appeal, and the Court of Appeals granted their application. See OCGA § 5-6-34
(b).
8
particularly given the fact that Dr. Swartz had never assisted in such
a procedure [during the past five years] and his evident preference
[today] for the open surgical approach to repairing an umbilical
hernia.
Brantley, 327 Ga. App. at 16-17 (citation omitted). Accordingly, the Court of
Appeals held, the trial court erred when it denied the motion to dismiss the
complaint or, in the alternative, for summary judgment.
2. Because this case concerns the meaning of Rule 702 (c) (2) (A), we
begin with the familiar and settled principles that govern our consideration of
the meaning of a statute. “A statute draws its meaning, of course, from its text.”
Chan v. Ellis, 296 Ga. 838, 839 (1) (770 SE2d 855) (2015) (citation omitted).
When we read the statutory text, “we must presume that the General Assembly
meant what it said and said what it meant,” Deal v. Coleman, 294 Ga. 170, 172
(1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted), and so, “we
must read the statutory text in its most natural and reasonable way, as an
ordinary speaker of the English language would.” FDIC v. Loudermilk, 295 Ga.
579, 588 (2) (761 SE2d 332) (2014) (citation and punctuation omitted). “The
common and customary usages of the words are important, but so is their
context.” Chan, 296 Ga. at 839 (1) (citations omitted). “For context, we may
look to the other provisions of the same statute, the structure and history of the
9
whole statute, and the other law — constitutional, statutory, and common law
alike — that forms the legal background of the statutory provision in question.”
May v. State, 295 Ga. 388, 391-392 (761 SE2d 38) (2014) (citations omitted).
With these principles in mind, we turn now to the words, structure, and context
of Rule 702 (c) (2) (A).
Rule 702 concerns the admissibility of opinion testimony by expert
witnesses in civil cases.7 The usual standard for the admissibility of such
testimony is found in Rule 702 (b):
If scientific, technical, or other specialized knowledge will assist the
trier of fact 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 which have been or will
be admitted into evidence before the trier of fact.
7
Rule 702 does not apply in criminal cases. See OCGA § 24-7-702 (a). See also
Vaughn v. State, 282 Ga. 99, 101 (3) (646 SE2d 212) (2007) (provisions of former OCGA
§ 24-9-67.1 [which were carried forward into Rule 702 with the adoption of our new
Evidence Code] do not apply in criminal cases).
10
OCGA § 24-7-702 (b). This standard is based upon Federal Rule of Evidence
702, see Mason v. Home Depot USA, 283 Ga. 271, 279 (5) (658 SE2d 603)
(2008), and it requires a trial court to sit “as a gatekeeper and assess the
reliability of proposed expert testimony,” An v. Active Pest Control South, 313
Ga. App. 110, 115 (720 SE2d 222) (2011) (citations omitted), applying the
principles identified in Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579
(113 SCt 2786, 125 LE2d 469) (1993), and its progeny. See OCGA § 24-7-702
(f). See also HNTB Ga. v. Hamilton-King, 287 Ga. 641, 642-643 (1) (697 SE2d
770) (2010). Rule 702 (b) applies in civil cases generally, including cases
involving professional malpractice.
Rule 702 (c) sets forth an additional requirement for the admission of
expert testimony about the applicable standard of care in all professional
malpractice cases, including medical malpractice cases. See Hankla v. Postell,
293 Ga. 692, 696 (749 SE2d 726) (2013). In a professional malpractice case, an
expert on the standard of care must have been “licensed by an appropriate
regulatory agency to practice his or her profession . . . or teaching in the
profession” at the time of the alleged negligence at issue. OCGA § 24-7-702 (c)
(1). For medical malpractice cases in particular, Rule 702 (c) (2) sets out still
11
more requirements for the admission of expert testimony about the standard of
care. Rule 702 (c) (2) (C) requires that an expert in a medical malpractice case
generally must be “a member of the same profession” as the defendant about
whose alleged malpractice the expert will testify. OCGA § 24-7-702 (c) (2) (C)
(i).8
In addition, Rule 702 (c) (2) (A) and (B) provide that an expert on the
standard of care in a medical malpractice case must have a particular sort of
knowledge and experience, either by virtue of having recently practiced the
profession (Rule 702 (c) (2) (A)) or having recently taught it (Rule 702 (c) (2)
(B)). More specifically, Rule 702 (c) (2) (A) and (B) require that such an expert:
[H]ad actual professional knowledge and experience in the area of
practice or specialty in which the opinion is to be given as the result
having been regularly engaged in:
(A) The active practice of such area of specialty of his
or her profession for at least three of the last five years,
with sufficient frequency to establish an appropriate
level of knowledge, as determined by the judge, in
performing the procedure, diagnosing the condition, or
rendering the treatment which is alleged to have been
performed or rendered negligently by the defendant
whose conduct is at issue; or
8
There are a number of exceptions to this requirement, which are identified in Rule
702 (c) (2) (C) (ii), (C) (iii), and (D). None of those exceptions, however, are important for
our present purposes, and we will not, therefore, discuss them further today.
12
(B) The teaching of his or her profession for at least
three of the last five years as an employed member of
the faculty of an educational institution accredited in
the teaching of such profession, with sufficient
frequency to establish an appropriate level of
knowledge, as determined by the judge, in teaching
others how to perform the procedure, diagnose the
condition, or render the treatment which is alleged to
have been performed or rendered negligently by the
defendant whose conduct is at issue . . . .
OCGA § 24-7-702 (c) (2). These are the provisions with which we are
principally concerned in this case.
According to Dr. Brantley and Southeast Georgia Health, the provisions
of Rule 702 (c) (2) (A) and (B) require that an expert on the standard of medical
care with respect to a particular surgical procedure must have actually performed
or taught that same surgical procedure in three of the past five years. After all,
they argue, the statute explicitly requires that the expert have been actively
involved in practice or teaching “with sufficient frequency . . . in performing the
procedure [or] teaching others how to perform the procedure.” And, they say,
the relevant “procedure” in this case is a laparoscopic procedure to repair an
umbilical hernia. Because Dr. Swartz has performed no more than one
laparoscopic procedure to repair an umbilical hernia in the past five years, they
reason, his testimony does not satisfy the requirements of Rule 702 (c) (2) (A)
13
as a matter of law, and the trial court had no discretion to find otherwise. As we
read its opinion, the Court of Appeals understood the statute in just this way.
See Brantley, 327 Ga. App. at 16-17. There are two fundamental problems with
this understanding of the statute.
To begin, Rule 702 (c) (2) (A) and (B) do not define exactly what is meant
by “procedure.” In its ordinary and everyday usage, “procedure” refers to a
process, method, or series of steps undertaken for the accomplishment of an end.
See, e.g., American Heritage Dictionary of the English Language at 1444 (3rd ed.
1992); Webster’s Third New International Dictionary at 1807 (1969). And as the
term is used in the statute, “procedure” clearly refers to the “procedure . . .
which is alleged to have been performed . . . negligently by the defendant whose
conduct is at issue.” OCGA § 24-7-702 (c) (2) (A) - (B). Everyone in this case
agrees about the generalized sense in which the word is used in the statute and
the identity of the procedure to which it refers. That is not the difficulty.
Rather, the difficulty with the statutory usage of “procedure” concerns the
level of generality at which the relevant procedure is to be defined. By way of
illustration, suppose that someone pointed out a dog and asked: “What sort of
animal is that?” Animals can be classified at varying levels of generality, and so,
14
you might accurately respond that the animal is a vertebrate, a mammal, of the
order Carnivora, of the family Canidae, of the genus Canis, of the species Canis
lupus, or of the subspecies Canis lupus familiaris. See Integrated Taxonomic
Information System.9 More specific yet, you might identify the dog by its breed,
gender, or some other distinguishing, immutable characteristic. Every one of
these answers would amount to an accurate response to the question.
In the same way, a medical “procedure” can be identified at varying levels
of generality. Take the procedure at issue in this case. It could be accurately
characterized just as the Court of Appeals, Dr. Brantley, and Southeast Georgia
Health characterized it, as a “laparoscopic procedure to repair an umbilical
hernia.” Characterized in that way, the record is clear that Dr. Swartz has
performed no more than one such procedure in the past five years. The
procedure could, however, be characterized more generally — but just as
accurately — as the surgical repair of an umbilical hernia or as an abdominal
laparoscopic procedure. Under either of those characterizations, Dr. Swartz
would have actual experience performing the procedure in question, inasmuch
9
Available at http://www.itis.gov, visited on June 30, 2015.
15
as he regularly performs surgical procedures to repair umbilical hernias, and he
regularly performs abdominal laparoscopic procedures of various sorts.
Because not all laparoscopic procedures to repair umbilical hernias are
done in exactly the same way, the procedure also could be characterized more
specifically than — but just as accurately as — the way in which the Court of
Appeals, Dr. Brantley, and Southeast Georgia Health characterized it. Indeed,
the medical literature indicates that laparoscopic surgeons use a variety of
techniques to enter into the abdominal cavity, they use different points of entry
to access the abdominal cavity, and they use different numbers of trocars, as
well as trocars of different sorts and sizes, to do so. See Fuller et al.,
Laparoscopic Trocar Injuries: A Report from a U. S. Food & Drug
Administration Center for Devices & Radiological Health Systematic
Technology Assessment of Medical Products Committee (Nov. 2003).10 See also
Heniford & Ramshaw, “Laparoscopic Ventral Hernia Repair,” 14 Surgical
Endoscopy 419, 420 (2000). With respect to laparoscopic procedures to repair
umbilical hernias specifically, the literature likewise indicates variations in
techniques and tools. See Rodriguez & Hinder, “Surgical Management of
10
Available at http://www.fda.gov/MedicalDevices/Safety/AlertsandNotices/, visited
on June 30, 2015.
16
Umbilical Hernia,” Operative Techniques in General Surgery, Vol. 6, No. 3 at
160 (Sept. 2004); Wright et al., “Is laparoscopic umbilical hernia repair with
mesh a reasonable alternative to conventional repair?,” 184 Am. J. of Surgery
505, 506 (2002). And the record in this case confirms the variability of
techniques and tools used in the laparoscopic repair of umbilical hernias. As a
result, the “procedure” in this case could be defined, one reasonably might say,
as specifically as a laparoscopic procedure to repair an umbilical hernia by use
of a particular number of trocars of a certain size and design, with the primary
trocar having been inserted by a specific technique at a particular site.
The Court of Appeals, Dr. Brantley, and Southeast Georgia Health
characterized the procedure in question at an intermediate level of generality,
and Dr. Brantley and Southeast Georgia Health insist that it must be so
characterized. They have not explained, however, why that is the case, and the
reason for such a rule is not self-evident. As we said, Rule 702 does not define
“procedure,” and standing alone, the word does not resolve the question about
the level of generality at which the procedure at issue is to be identified.
Moreover, nothing else in the statute points clearly and precisely to the level of
generality at which the relevant procedure ought to be characterized.
17
That brings us to the second fundamental problem with the way in which
the Court of Appeals, Dr. Brantley, and Southeast Georgia Health understand
the statute. If they were right that Rule 702 (c) (2) (A) and (B) absolutely require
that an expert have performed or taught exactly the same procedure as that at
issue, we would have to determine definitively the level of generality at which
the procedure should be characterized, insofar as the characterization of the
procedure would be dispositive in many cases, perhaps including this one. But
as it turns out, we need not resolve that question to decide this case because the
Court of Appeals, Dr. Brantley, and Southeast Georgia Health are simply
wrong.11
A careful reading of the text shows that Rule 702 (c) (2) (A) and (B) do
not require that an expert actually have performed or taught the very procedure
at issue. Rather, these provisions require only:
• That the expert has “actual professional knowledge and experience
in the area of practice or specialty in which the opinion is to be
given”;
11
Although we need not answer that question definitively, the fact that Rule 702 does
not seem to point to any particular level of generality at which the “procedure” in question
is to be characterized suggests strongly to us that the level of generality is not crucial to the
pertinent inquiry under Rule 702. If it were, after all, one would expect the statute to speak
to it. That the statute does not leads us to think that perhaps the Court of Appeals, Dr.
Brantley, and Southeast Georgia Health were wrong about the pertinent inquiry.
18
• That this “actual professional knowledge and experience” is derived
from the expert “having been regularly engaged in . . . [t]he active
practice of such area of specialty . . . for at least three of the last five
years . . . [or] [t]he teaching of his or her profession for at least three
of the last five years as an employed member fo the faculty of an
educational institution accredited in the teaching of such
profession”; and
• That the expert has been “regularly engaged in [active practice or
teaching] with sufficient frequency to establish an appropriate level
of knowledge, as determined by the judge, in performing the
procedure . . . [or] teaching others how to perform the procedure.”
OCGA § 24-7-702 (c) (2) (A) - (B). No doubt, the simplest way to demonstrate
that an expert has “an appropriate level of knowledge . . . in performing [a]
procedure . . . [or] teaching others how to perform [a] procedure” is by proof
that the expert actually has done these things himself. Moreover, it may be that,
in many cases, if an expert has not actually performed or taught a procedure
himself, he will be found lacking “an appropriate level of knowledge.” But by
the plain terms of the statute, the pertinent question is whether an expert has “an
appropriate level of knowledge . . . in performing the procedure . . . [or] teaching
others how to perform the procedure,” not whether the expert himself has
actually performed or taught it. If the General Assembly had meant to require
19
absolutely that the expert actually have performed or taught the procedure in
question, it presumably would have said so. See Deal, 294 Ga. at 172 (1) (a).
Rule 702 (c) (2) (A) and (B) refer to “performing the procedure” and
“teaching others how to perform the procedure” merely as the subjects of which
an expert witness must have an “appropriate level of knowledge, as determined
by the judge.” Used in this way, “appropriate” means “suitable or fitting for a
particular purpose,” Tapia v. United States, ___ U. S. ___ (III) (A) (131 SCt
2382, 180 LE2d 357) (2011) (citation omitted), and so, the statute speaks of a
“level of knowledge” that is “suitable or fitting for a particular purpose.” But
what purpose? Considering the “appropriate level of knowledge” requirement
in context, it must mean, we conclude, knowledge suitable or fitting for the
rendering of the particular opinions to which the expert proposes to testify.
The whole premise of Rule 702 is that a trial court must act as a
“gatekeeper” to ensure the relevance and reliability of expert testimony. See
HNTB Ga., 287 Ga. at 645 (2) (citation omitted). That purpose is served in all
cases by the general standard for the admission of expert testimony in Rule 702
(b), but it is served as well by Rule 702 (c), which sets forth more particularized
requirements for all professional malpractice cases in paragraph (c) (1), and for
20
medical malpractice cases specifically in paragraph (c) (2). These requirements
appear to have been designed to promote an assessment of relevance and
reliability in the specific cases in which the provisions of Rule 702 (c) apply.
Considering the rapid pace with which the state of the art advances in the field
of medicine, and given the high degree of specialization in the practice of
medicine, Rule 702 (c) (2) accounts for the reality that the standards of medical
care are likely to evolve over time, and they may vary in important ways from
specialty to specialty. The requirements of Rule 702 (c) (2) ensure that an expert
on the standard of care in a medical malpractice case has an informed basis for
testifying about the standard of care that presently prevails in the specific
profession and specialty at issue. To be sure, that the trial court sits as a
gatekeeper to ensure relevance and reliability is the very idea behind Daubert
and its progeny, see Kumho Tire Co. v. Carmichael, 526 U. S. 137, 152 (II) (B)
(119 SCt 1167, 143 LE2d 238) (1999), and the General Assembly has said that
the courts should look to Daubert and its progeny in “interpreting and applying”
Rule 702 as a whole, not just in “interpreting and applying” the general standard
set out in subsection (b). OCGA § 24-7-702 (f). And Rule 702 (c) (2) (A) and
(B) refer explicitly to the gatekeeper role of the trial court, speaking in terms of
21
“an appropriate level of knowledge, as determined by the judge.” OCGA § 24-7-
702 (c) (2) (A) - (B) (emphasis supplied). Just as we explained in Nathans v.
Diamond, 282 Ga. 804, 806 (1) (654 SE2d 121) (2007), Rule 702 (c) (2) (A) and
(B) are “intended to require a plaintiff to obtain an expert who has significant
familiarity with the area of practice in which the expert opinion is to be given.”
To put it another way, Rule 702 is designed to ensure that an expert genuinely
knows of that of which he speaks.12
This recognition that Rule 702 (c) (2) (A) and (B) implicate the gatekeeper
role of the trial court tells us something important about the nature of the inquiry
into the qualification of an expert witness under those provisions. As the United
States Supreme Court explained in Daubert, the gatekeeper role contemplates
that a trial court will conduct an inquiry that is “flexible,” 505 U. S. at 594 (II)
(C), and that is tailored specifically to the peculiar opinions to which the expert
proposes to testify in that case, inquiring about the extent to which those
12
That Rule 702 (c) (2) (A) and (B) implicate the gatekeeping function of the trial
court does not mean that those provisions are mere suggestions to guide a trial court in its
application of the general standard set out in Rule 702 (b). The requirements of Rule 702 (c)
(2) (A) and (B) are just that, requirements, and as we said in Nathans, “even if [an] expert
is generally qualified as to the acceptable standard of conduct of the medical professional in
question, the expert cannot testify unless he also satisfies the specific requirements of
[paragraph] (c) (2).” 282 Ga. at 806 (1). Our point is only that the more particularized
requirements of Rule 702 (c) are intended to serve the same essential purpose as the
generalized standard of Rule 702 (b).
22
opinions have a basis in sound scientific principles and methodologies. See id.
at 592-593 (II) (C). Just as an assessment of admissibility under Rule 702 (b)
must begin with the specific opinions at issue, so too must a consideration of the
“appropriate level of knowledge” under Rule 702 (c) (2) (A) and (B). We hold
that an expert has an “appropriate level of knowledge . . . in performing a
procedure” to the extent that the expert has sufficient knowledge about the
performance of the procedure — however generally or specifically it is
characterized, so long as it is the procedure that the defendant is alleged to have
performed negligently — to reliably give the opinions about the performance of
the procedure that the expert proposes to give.
To illustrate a proper application of these principles, consider a
cardiovascular surgeon, who is offered as an expert on the standard of care with
respect to a particular sort of heart surgery. The surgeon has not performed any
surgeries of that particular sort, but she has performed many other heart
surgeries. Whether her experience has given the surgeon an “appropriate level
of knowledge . . . in performing the procedure” depends upon exactly what
opinions the surgeon is expected to share in her testimony. If she proposes to
testify about an aspect of the surgery in question that is unique and materially
23
unlike the heart surgeries with which she has experience, her limited experience
likely will be a problem for the admissibility of her testimony. But if she
proposes only to testify about an aspect of the surgery that is — as shown by the
record — not different in any material way from the surgeries with which she
has experience, she might well be found to have an “appropriate level of
knowledge” by virtue of her practical experience. Whether the experience of a
particular expert witness is enough to establish that the expert has an
“appropriate level of knowledge” is a question committed to the discretion of
the trial court.
Our decision in Nathans hints at this sort of flexible approach. There, we
considered whether the trial court abused its discretion when it concluded that
a pulmonologist was not competent under Rule 702 (c) (2) (A) to opine about
the applicable standard of care for obtaining informed consent in connection
with an otolaryngological surgery to treat obstructive sleep apnea. In our
consideration of this question, we did not inquire whether the pulmonologist
himself had performed precisely the same sort of surgery. Rather, we asked
whether the pulmonologist had “performed surgeries like the one in question,”
whether he had “obtained informed consent for similar surgeries,” and whether
24
“the surgeries that he had performed involved risks that are similar to the risks
involved with the surgery that [the defendant surgeon] performed in the present
case.” 282 Ga. at 807 (1) (emphasis supplied).
Here, the Court of Appeals appears to have thought that Dr. Swartz was
not competent to offer any opinion about a laparoscopic procedure to repair an
umbilical hernia simply because he had not been involved in the past five years
with more than one such procedure. The Court of Appeals failed, however, to
consider the limited scope of the negligence alleged by Dubois and his wife in
their amended complaint, the limited nature of the opinions that Dr. Swartz
proposes to give, the similarities and dissimilarities between laparoscopic
repairs of umbilical hernias and the other sorts of abdominal laparoscopic
procedures with which Dr. Swartz indisputably has substantial experience, and
the extent to which the differences between the various abdominal laparoscopic
procedures are significant for the purposes of assessing the relevance and
reliability of the particular opinions to which Dr. Swartz will testify in this case.
The Court of Appeals, therefore, misapplied Rule 702 (c) (2) (A).
As Dubois and his wife have conceded in this Court, they now have
narrowed their allegations of negligence on the part of Dr. Brantley in the
25
performance of the laparoscopic umbilical hernia repair to contend only that he
was negligent with respect to the insertion of the primary trocar. Dr. Swartz
proposes to testify only that Dr. Brantley breached the applicable standard of
care by his insertion of the primary trocar to commence the laparoscopic
procedure. Although Dr. Swartz in recent years has given up laparoscopic
procedures to repair umbilical hernias, the record shows that he still regularly
performs numerous other laparoscopic procedures in the abdominal cavity, and
as a part of these other procedures, Dr. Swartz regularly inserts primary trocars
like the one used by Dr. Brantley in this case. There is some evidence in the
record from which the trial court might reasonably have found that,
notwithstanding the many differences among the several varieties of abdominal
laparoscopic procedures, they do not differ in any important way with respect
to the accepted standards for the insertion of the primary trocar. Significantly,
Dr. Brantley points to nothing in the record that suggests that the ways in which
the primary trocar may be inserted for the purpose of a laparoscopic umbilical
hernia repair are somehow unique and different in any meaningful respect from
the ways in which the primary trocar may be inserted for other sorts of
abdominal laparoscopic procedures. And although laparoscopic surgeons may
26
employ a variety of techniques and tools, Dr. Brantley fails to show that he
inserted the primary trocar by use of a technique or tool that is unfamiliar to Dr.
Swartz or unlike the techniques and tools that Dr. Swartz employs in his own
practice. For these reasons, the trial court properly could have concluded that
Dr. Swartz has experience enough to establish a reliable basis for the opinions
that he proposes to render, and on this record, it cannot be said that the trial
court abused its discretion when it found that Dr. Swartz had an “appropriate
level of knowledge . . . in performing the procedure” to opine under Rule 702
(c) (2) (A) that Dr. Brantley was negligent when he inserted the primary trocar.13
The Court of Appeals erred when it concluded otherwise, and we reverse its
judgment.
Judgment reversed. All the Justices concur.
13
We hold only that it was no abuse of discretion for the trial court on the existing
record to find that Dr. Swartz is qualified under Rule 702 (c) (2) (A) to give the particular
opinions that he has proposed to give. We do not hold that it would have been an abuse of
discretion for the trial court to find otherwise. And we do not hold that it would be
permissible for Dr. Swartz to give other opinions about the laparoscopic procedure
performed by Dr. Brantley. His limited experience in the past five years in performing
laparoscopic repairs of umbilical hernias might well leave him without a reliable basis upon
which to offer opinions about aspects of the procedure other than the primary trocar insertion,
but that is not an issue that we decide today.
27
Dubois v. Brantley
Court: Supreme Court of Georgia
Date filed: 2015-07-13
Citations: 297 Ga. 575, 775 S.E.2d 512
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