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Can You Attack an Expert Affidavit on Daubert Grounds?

Georgia law requires that attorneys support professional negligence claims with an expert affidavit. O.C.G.A. § 9-11-9.1 Can defendants challenge that affidavit on Daubert grounds? (Codified in Georgia as O.C.G.A. § 24-7-702). If so, does Rule 702 apply in the usual manner?

At least nominally, Rule 702 does apply. O.C.G.A. § 24-7-702(e) provides that “An affiant shall meet the requirements of this Code section in order to be deemed qualified to testify as an expert by means of the affidavit required under Code Section 9-11-9.1.” There is no carve out for 9-11-9.1 affidavits. For that reason, Defendants have a strong incentive to attack an expert early. That way, Plaintiffs cannot develop sufficient facts to support admissibility.

Plaintiffs’ best response may be to persuade a court to delineate between challenges to reliability and challenges to qualifications.

Where a Defendant challenges reliability, the best answer may be delay adjudication. Ask the Court to “exercise … its discretion[ and] extend the time for filing [an] amendment” to the affidavit until after the close of discovery. O.C.G.A. § 24-7-702(e). That way, discovery can unearth sufficient facts to support the expert’s views. Once the issue must be briefed, cite to ample case law stating that reliability goes to weight, not admissibility.

Where a Defendant challenges qualifications, however, go ahead and respond. In most cases, it is better to preserve credibility with the Court by answering promptly on the merits. Absent unusual circumstances, an expert’s qualifications ought be clear from the commencement of the case. Experts know their own qualifications.

Concerned about a possible Daubert challenge to your expert? Kurt Kastorf has helped trial attorneys defeat dozens of challenges to expert qualifications and reliability. He can help you work through the best strategy for your case. Contact Kurt here.

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