Arvin Ritchey Mason and Claudia Mason hereinafter, the Masons sued The Home Depot U.S.A., Inc. and The Flecto Company, Inc. in 1997 for injuries Arvin Mason allegedly received in 1996 while using Varathane, a floor covering product manufactured by Flecto and sold by Home Depot, and for Claudia Mason’s resulting loss of consortium. Shortly before the case went to trial in February 2005, the Georgia General Assembly enacted the Tort Reform Act of 2005 hereinafter TRA, including OCGA § 24-9-67.1,1 which governs the qualification of expert witnesses and the admissibility of expert testimony. Based on the new statute, the defense filed a motion to exclude the testimony of two expert witnesses for the plaintiffs, Dr. Grace Ziem and Dr. Ronald Huggins. The trial court denied the motion, holding that application of the new statute after years of discovery under pre-existing rules governing expert witnesses would violate the Georgia Constitution’s proscription against retroactive laws. After a mistrial, the defense renewed their motion to exclude the testimony of the two experts, in response to which the Masons mounted attacks on the constitutionality of OCGA § 24-9-67.1. The trial court rejected the Masons’ contentions the statute denied equal protection, violated the constitutional guarantee of trial by jury, and violated the prohibition against retroactive law, but found a portion of subsection b 1 to deny due process because it contradicts part of subsection a, and cured the problem by excising part of subsection b 1 and found subsection f violative of the principle of separation of powers, but cured that defect by severing subsection f from the statute. The trial court entered a second order applying the statute to exclude the testimony of the two experts. This appeal is from those two orders. 1. The Masons contend the statute violates the guarantees of equal protection of the laws found in the constitutions of the United States and Georgia. Specifically, they contend that because the statute imposes more stringent requirements for the admission of expert testimony in their tort action than applicable statutes would in criminal cases and in civil condemnation cases, they are disadvantaged in comparison to the parties in those types of cases.
Standing to challenge a statute on constitutional grounds in Georgia depends on a showing the plaintiff was injured in some way by the operation of the statute or that the statute has an adverse impact on the plaintiff’s rights. Tennille v. State , 279 Ga. 884, 885 622 SE2d 346 2005; Agan v. State , 272 Ga. 540 1 533 SE2d 60 2000; State of Ga. v. Jackson , 269 Ga. 308 1 496 SE2d 912 1998; Ambles v. State , 259 Ga. 406 1 383 SE2d 555 1989. The Masons showed how application of the stricter standards of OCGA § 24-9-67.1 places them at a disadvantage compared to parties in criminal cases, in which the admissibility of expert testimony is governed by the less strict standard of OCGA § 24-9-67 “In criminal cases, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.”, and in civil condemnation actions, which are exempted from the requirements of the statute by OCGA § 22-1-14 b, thereby establishing their appellate standing to assert a claim of denial of equal protection of the law.2
