Orthopedic Surgery Expert Witness Exclusion Affirmed by Georgia Appeals Court

The plaintiff sued defendant for alleged work-related negligence.  The trial court ruled in favor of the defendant, granting summary judgment after excluding the orthopedic surgery expert witness hired by the plaintiff.  The plaintiff appealed, and the appeals court affirmed the opinion of the trial court.

Facts: This case (SMITH v. CSX TRANSPORTATION, INC. – Court of Appeals of Georgia – October 27th, 2017) involves an appeal of a trial court opinion granting summary judgment in favor of the defendant.  The plaintiff (Smith) appealed, stating that the lower court erred when it excluded the expert witness testimony of Dr. Arthur Wardell (orthopedic surgery expert witness) and granted summary judgment in favor of the defendant (CSX).  Smith filed this Federal Employers’ Liability Act (FELA) lawsuit against CSX alleging that his job duties caused injuries to his shoulders and right foot.  In order to prove his case, Smith hired Dr. Wardell.  CSX filed a motion to exclude this expert witness testimony, which the trial court granted.

Discussion:  Dr. Wardell, in his trial court testimony, opined that Smith’s occupational duties were a contributing factor in causing his injuries, which led to his occupational disability.  Smith’s appeal is based on two theories.

First, Smith argues that FELA has a more relaxed standard of causation, which consequently lowers the standard about how trial courts look at expert witness testimony.  The appeals court did not agree with this assessment.  While the court did agree that the standard for causation is relaxed under FELA, the standard for expert testimony is not.  The court also opined that the federal rules of evidence and FELA do not have an effect on one another.  Thus, the court affirmed this part of Smith’s argument.

Second, Smith argues that the trial court treated this “routine orthopedic case” as a “toxic exposure case” in excluding Dr. Wardell’s testimony.  Again, the appeals court disagreed, opining that the trial court has broad discretion in deciding how to assess the reliability of expert witness testimony.

The appeals court then looked at how the trial court reviewed the expert witness testimony of Dr. Wardell.  First, the court opined that Dr. Wardell’s use of the phrase “differential etiology” was sufficient methodology.  At his deposition, Dr. Wardell testified that he saw Smith for approximately one hour.  In addition, his only understanding of Smith’s work history was what Smith relayed to him.  In addition, the appeals court opined that Dr. Wardell’s descriptions of Smith’s tasks were vague.  Thus, the trial court, and agreed by the appeals court, opined that Dr. Wardell’s testimony lacked reliability.

In addition, the appeals court noted that Dr. Wardell’s expert opinion was also ruled unreliable in a FELA case for similar reasons.

Conclusion:  The appeals court affirmed the opinion of the trial court in excluding the expert witness testimony of Dr. Arthur Wardell