Expert testimony is an essential element of any claim of professional engineering malpractice. However, Munro v. Dep’t of Transportation, 890 S.E.2d 349 (Ga. App. 2023) demonstrates that a Georgia Rule of Evidence regarding expert testimony in professional malpractice cases can make proving design malpractice very difficult in some circumstances.
On November 10, 2017, twenty-four-year-old Ashley Munro died following a collision with a tractor-trailer at an intersection in Colquitt County, Georgia. Munro’s parents filed a wrongful death action against the Georgia Department of Transportation (“GDOT”), alleging the GDOT had negligently designed, installed, maintained, and inspected the intersection. The Munros attached an affidavit from an engineering expert, Herman Hill, to support their claims. GDOT filed a Motion to Dismiss the claims on the basis of sovereign immunity, and the trial court granted its Motion. The Munros subsequently appealed the decision.
The Georgia Court of Appeals noted to defeat GDOT’s claim of sovereign immunity, the Munros needed to show the intersection was not designed in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design. The Court of Appeals noted the Munros’ negligent design claim was essentially one of engineering malpractice. As such, the Court of Appeals determined that Ga. Code Ann. § 24-7-702(c)(1) applied to the Hill’s expert testimony.
In a professional malpractice case, Ga. Code Ann. § 24-7-702 (c)(1) requires an expert providing testimony on the applicable standard be licensed by an appropriate regulatory agency to practice his or her profession or teaching in the profession at the time of the alleged negligence at issue. The intersection in question was designed in 1931, and Hill did not become a licensed professional engineer until 1969. The Court of Appeals held that since Hill was not licensed in 1931 when the intersection was designed, his expert testimony was inadmissible pursuant to Ga. Code Ann. § 24-7-702 (c)(1).
The Court of Appeals acknowledged that Ga. Code Ann. § 24-7-702(c)(1) “effectively destroys an entire class of claims for the negligent design of roads, as many roads in Georgia were designed long before any potential living expert witness had been licensed.” However, the Court of Appeals explained the intended result of the statute was a question for the Georgia General Assembly, not the Court. The Court of Appeals stated, “in considering the meaning of a statute, our charge as an appellate court is to presume that the General Assembly meant what it said and said what it meant.” Ham v. City of Milton, 856 S.E.2d 60 (Ga. App. 2021).
Munro presents an interesting issue. While the case addressed roads, it assumedly would apply to other structures as well and opens up a litany of other questions, such as the effect of renovations or repairs. Until such time that the Georgia General Assembly provides further insight by way of an amendment, only an engineer licensed at the time of the design may provide expert testimony to deviations from the applicable professional standard of care in Georgia. Ga. Code Ann. § 24-7-702(c)(1).