Mason v. Home Depot U.S.A., Inc. ( 2008 )

MELTON, Justice,

concurring specially.

Although I concur with the remainder of the majority’s opinion, I cannot concur with Division 2, as I believe that the provisions of OCGA§ 24-9-67.1 (a) and(b) (1) may be harmonized without the need to strike any part of the statute.

In analyzing this case, we must not lose sight of the three basic principles of statutory construction.

First, courts should construe a statute to give sensible and intelligent effect to all of its provisions and should refrain, whenever possible, from construing the statute in a way that renders any part of it meaningless. Second, a court’s duty is to reconcile, if possible, any potential conflicts between different sections of the same statute, so as to make them consistent and harmonious. Third, in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.

(Citations and punctuation omitted.) Sikes v. State, 268 Ga. 19,21 (2) (485 SE2d 206) (1997).

With these principles in mind, OCGA § 24-9-67.1 (a) sets forth the types of facts on which an expert may rely in forming an opinion. These facts include: (1) “facts as proved by other witnesses”; (2) facts “perceived by or made known to the expert at or before the hearing or trial”; and (3) inadmissible facts or data “of a type reasonably relied on by experts in the particular field.” With regard to these latter facts, an expert’s reliance on inadmissible facts will not automatically make an expert opinion inadmissible, and a trial court may ultimately determine to admit the inadmissible facts into evidence if their probative value in assisting the jury outweighs their prejudicial effect.

OCGA § 24-9-67.1 (b), in turn, focuses on the standards for determining whether the expert opinion, based on the types of facts set forth in subsection (a), will be admissible to “assist the trier of fact.” OCGA § 24-9-67.1 (b) (1) provides that the opinion testimony is admissible if it is “based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial.” (Emphasis supplied.) It does not mandate that an expert opinion must be based solely on admissible facts and data, which reflects subsection (a)’s indication that an expert may consider some inadmissible facts in reaching an opinion. Therefore, under (b) (1), an expert opinion which relies upon both admissible and inadmissible evidence or data will be allowed if the opinion testimony is based on a sufficient amount of admissible evidence that will enable the jury to properly assess the opinion testimony and apply it “to understand the evidence or to determine a fact in issue.” Moreover, the language of (b) (1), itself, appears to reference both admissible and inadmissible facts. Admissible facts are those “which are admitted” at a hearing, and, in turn, those facts “which will be admitted” may include inadmissible facts deemed otherwise admissible by the trial court pursuant to subsection (a).

In summation, I believe subsections (a) and (b) work together to create a framework in which, to be admissible, the expert opinion must be based on a sufficient amount of admissible facts (including facts which are automatically admissible and inadmissible facts with the potential to be admitted at the trial court’s discretion) to provide the jury with some means of analyzing the expert’s conclusion. When interpreted in this manner to harmonize subsection (a) and subsection (b) (1), I believe the statute sets forth a reasonable rule for expert testimony.

Rather than harmonizing the statute and construing the entirety of its language, as we are required to do, the majority concludes that subsections (a) and (b) (1) are contradictory because “subsection (b) (1) limits experts to relying on potentially admissible facts and data, whereas subsection (a) plainly states that facts and data relied upon need not be admissible.” This observation, however, is actually proof that the statutory provisions work in harmony when the entirety of subsection (a) is properly considered. In language not considered by the majority, subsection (a) makes it clear that all inadmissible evidence properly relied on by an expert is, in fact, potentially admissible. It states:

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 expert’s opinion substantially outweighs their prejudicial effect.

(Emphasis supplied.) Taking this important language into consideration, subsections (a) and (b) (1) are clearly not contradictory, as each subsection contemplates that an expert opinion may be based on some combination of admissible and inadmissible facts and data. There is simply no contradiction in the plain language of the statute, taken as a cogent whole, and the majority errs by creating one based on a narrow reading of selected provisions.