This case was lost before it started

In 2005, the Georgia Legislature enacted a bill that required that, to give expert testimony in a professional malpractice case, the expert "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 negligence at issue." That law is now part of the Georgia Rules of Evidence, O.C.G.A. section 24-7-702(c)(1).

So, what is the sensible result when the allegation of professional negligence is that the State DOT negligently designed an intersection before 1969 and that this negligence led to the accident that caused the injury or death 50 years later? In a recent wrongful-death case, even though plaintiffs' expert engineering witness had been licensed as a professional engineer since 1969, that was still after the intersection had been designed. Therefore, the engineer could not testify regarding negligent design of the intersection under section 24-7-702(c)(1).

Fortunately for the plaintiffs, they also had a claim of negligent inspection, which was not subject to the same requirement and could stay in the case.

One could imagine the statute making sense if it was meant to exclude testimony of "fresh" experts who seek to give opinions on what other professionals had done while the experts were still in school. But to exclude the testimony of an expert with over 50 years' experience? This issue deserves a fresh look next session.

Munro v. Georgia Department of Transportation (Ga. Ct. App. June 29, 2023)