NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: August 21, 2023
S22G0905. MILLER et al. v. GOLDEN PEANUT COMPANY, LLC
et al.
MCMILLIAN, Justice.
This appeal, arising out of a fatal collision between a tractortrailer driven by Lloy White and a car driven by Kristie Miller, calls
on this Court to address whether the well-established test governing
the admissibility of expert testimony applies with equal force to
investigating law enforcement officers. For the reasons that follow,
we hold that when an investigating law enforcement officer provides
expert testimony, the officer is subject to the same inquiry as all
witnesses who offer expert opinion testimony and, therefore, the
trial court abused its discretion in failing to conduct a full, threeprong analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (113 SCt 2786, 125 LE2d 469) (1993), and its progeny.
The record shows that at approximately 8:15 p.m. on
September 27, 2017, after picking up a load of green peanuts from a
farm in Thomas County to take to a drying facility in Camilla, White
slowly made a left turn to head northbound onto a two-lane road.
Kristie’s vehicle, which was traveling southbound, collided with the
side of the trailer. The accident resulted in Kristie’s death and
injuries to her minor son. Sergeant Chad Fallin of the Georgia State
Patrol’s Specialized Collision Reconstruction Team (“SCRT”) did a
walk-through of the crash site that night and was the lead
investigator of a SCRT that performed a number of tests in the
following weeks and ultimately issued a 102-page SCRT report.
Kristie’s husband, Ross Miller, individually and as next friend
and natural guardian of his minor son and the administrator of
Kristie’s estate, and Hayden Miller, Kristie’s adult son, (collectively
“Miller”) filed suit against White; Golden Peanut Company, LLC
(“Golden Peanut”), the owner of the trailer that White was
transporting; and Archer Daniels Midland Company (“ADM”),
Golden Peanut’s parent company. Following discovery, Miller filed
2
a motion to exclude the following portion of Sergeant Fallin’s SCRT
report and any related testimony:
For unknown reasons, [Kristie] did not recognize the
tractor-trailer being driven by [White] entering the
roadway from a private – from a private field drive. It is
the opinion of this investigating officer that [Kristie] was
distracted by something and failed to slow her vehicle
down to allow for the trailer to clear her travel lane before
the collision.
Miller argued that this testimony was unreliable because it ignored
part of White’s testimony and because Sergeant Fallin failed to
perform nighttime testing in reaching his conclusions. Miller also
sought to exclude Sergeant Fallin’s opinion that, when White
started pulling his truck out of the field and across the opposite lane
of traffic, White had the right of way 1 on the ground that it is a legal
conclusion and not a proper subject of Sergeant Fallin’s testimony.2
The trial court denied Miller’s motion to exclude, concluding
1 It appears from deposition testimony that Sergeant Fallin based this
opinion on his findings that White had already established his attempted lane
of travel and that Kristie, who was traveling 70 miles per hour in a 55 mileper-hour zone, had 27 seconds to avoid hitting the trailer.
2 Miller does not raise this argument on appeal, focusing instead on
Sergeant Fallin’s opinion that Kristie was distracted by something prior to the
accident, so we will not address this issue. See State v. Turner, 304 Ga. 356,
359 (1) n.6 (818 SE2d 589) (2018).
3
that an investigating officer is presumptively qualified as an expert,
citing Fortner v. Town of Register, 289 Ga. App. 543, 545 (1) (657
SE2d 620) (2008), and Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga.
App. 385, 392 (3) (414 SE2d 521) (1991), and need not meet the
additional evidentiary burdens as set forth in OCGA § 24-7-702
(“Rule 702”) and Daubert. After the trial court denied Golden Peanut
and ADM’s motions for summary judgment, the Court of Appeals
granted their application for interlocutory appeal, and Miller crossappealed from the denial of his motion to exclude. The Court of
Appeals reversed the trial court’s denial of summary judgment to
Golden Peanut and ADM, but affirmed the order denying the motion
to exclude, relying on the trial court’s reasoning and without further
examining whether the trial court properly conducted the threeprong assessment established in Daubert. See Golden Peanut Co.,
LLC v. Miller, 363 Ga. App. 384, 390 (4) (a) (870 SE2d 511) (2022)
(“[I]t has long been recognized that a police officer with investigative
training and experience on automobile collisions is an expert,
although of course the credibility and weight to be given his
4
testimony is for the jury.”).
We granted certiorari and posed two questions:
1. Under what circumstances must a law
enforcement officer who conducts an investigation of an
accident in the course of his official duties be qualified as
an expert under OCGA § 24-7-702 (b) if called to testify in
a civil case resulting from the accident as both a fact
witness and an expert witness? How is the portion of the
testimony considered to be expert testimony to be
determined?
2. If such a law enforcement officer must be
qualified as an expert under OCGA § 24-7-702 (b), did the
trial court properly deny the motion in limine to exclude
the expert testimony and part of the officer’s report in this
case?
1. We begin by recognizing that, although the admissibility of
lay and expert opinion testimony is clearly governed by distinct
standards, “nothing . . . prevents a law enforcement officer from
being qualified to provide both lay opinion and expert testimony.”
Bullard v. State, 307 Ga. 482, 492 (4) (837 SE2d 348) (2019) (citation
and punctuation omitted). Thus, we must examine the difference
between expert and lay testimony.
(a) Our Evidence Code establishes standards for admissibility
5
for both lay testimony and expert testimony. OCGA § 24-7-701
(“Rule 701”), which governs the admissibility of lay witness opinion
testimony, provides:
(a) If the witness is not testifying as an expert, the
witness’s testimony in the form of opinions or inferences
shall be limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness;
(2) Helpful to a clear understanding of the witness’s
testimony or the determination of a fact in issue; and
(3) Not based on scientific, technical, or other
specialized knowledge within the scope of Code Section
24-7-702.
Rule 702 (b), which governs the admissibility of expert witness
testimony, currently provides: 3
3 The current form of the statute took effect on July 1, 2022. See Ga. L.
2022, p. 201, § 1. OCGA § 24-7-702 (b) previously provided:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form
of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and
methods; and
(3) The witness has applied the principles and methods
reliably to the facts of the case which have been or will be admitted
6
A witness who is qualified as an expert by knowledge,
skill, experience, training or education may testify in the
form of an opinion or otherwise, if:
(1) The expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(2) The testimony is based upon sufficient facts or
data;
(3) The testimony is the product of reliable principles
and methods; and
(4) The expert has reliably applied the principles and
methods to the facts of the case.
Other authorities offer guidance in construing these
provisions. As an initial matter, because our Rule 701 and Rule 702
are modeled after Rules 701 and 702 of the Federal Rules of
Evidence, we look to the decisions of federal appellate courts,
especially the United States Supreme Court and the Eleventh
Circuit, that have construed and applied these Rules. See Glenn v.
State, 306 Ga. 550, 555 (3) (832 SE2d 433) (2019); Scapa Dryer
into evidence before the trier of fact.
The parties have not addressed whether the 2022 amendment or the previous
version of Rule 702 applies to this case, but we need not resolve this issue at
this time because it does not appear that this amendment materially changes
the requirements of Rule 702 and has no effect on our conclusion as to whether
expert testimony from an investigating law enforcement officer is subject to
Daubert.
7
Fabrics, Inc. v. Knight, 299 Ga. 286, 289 n.5 (788 SE2d 421) (2016).
See generally State v. Almanza, 304 Ga. 553, 558 (2) (820 SE2d 1)
(2018). The Eleventh Circuit has explained that the “prototypical
example[] of the type of evidence” admissible as a lay opinion under
Rule 701 relates to “the appearance of persons or things, identity,
the manner of conduct, competency of a person, degrees of light or
darkness, sound, size, weight, distance, and an endless number of
items that cannot be described factually in words apart from
inferences.” Tampa Bay Shipbuilding & Repair Co. v. Cedar
Shipping Co., 320 F3d 1213, 1222 (V) (11th Cir. 2003) (citation and
punctuation omitted). By contrast, expert opinion testimony has
been described as a “hypothesis” based on the witness’s scientific,
technical, or other specialized knowledge, “[a]nd the ability to
answer hypothetical questions is the essential difference between
expert and lay witnesses.” United States v. Henderson, 409 F3d
1293, 1300 (II) (3) (11th Cir. 2005) (citation and punctuation
omitted).
The Advisory Committee Notes to Federal Rule 701 further
8
explain that, in distinguishing between lay and expert witness
opinion testimony, courts should consider the witness’s method of
reasoning: “the distinction between lay and expert witness
testimony is that lay testimony ‘results from a process of reasoning
familiar in everyday life,’ while expert testimony ‘results from a
process of reasoning which can be mastered only by specialists in
the field.’” Fed. R. Evid. 701, Advisory Committee Note. Thus, “[l]ay
opinion testimony cannot provide specialized explanations or
interpretations that an untrained layman could not make if
perceiving the same acts or events.” Great Lakes Ins. SE v. Wave
Cruiser LLC, 36 F4th 1346, 1358 (III) (B) (11th Cir. 2022) (citation
and punctuation omitted).
As noted above, a properly disclosed and qualified expert can
testify as both an expert and a fact witness. See Travelers Property
Cas. Co. of America v. Ocean Reef Charters LLC, 71 F4th 894, 907
(II) (B) (11th Cir. 2023). But any expert opinion testimony from that
witness must satisfy the conditions for admissibility. The 2000
9
amendment to Federal Rule 7014 “was designed to eliminate the risk
that the reliability requirements set forth in Rule 702 will be evaded
through the simple expedient of proffering an expert in lay witness
clothing.” Id. (citation and punctuation omitted). The Eleventh
Circuit Court of Appeals recently offered a treating physician as an
example: a treating physician who testifies that the plaintiff was
coughing and running a fever offers lay witness testimony governed
by Rule 701. See id. at 907 (II) (B) n.9. But if that same physician
testifies that he diagnosed the patient as having Reactive Airways
Dysfunction Syndrome caused by exposure to a toxic chemical, that
testimony is based on “scientific, technical, or other specialized
knowledge and must be qualified under Rule 702.” Id. (citation and
punctuation omitted).
Turning to the disputed testimony here, the parties agree that
SCRT officers, such as Sergeant Fallin, receive specialized training
4 This amendment added subsection (c) to Rule 701 (corresponding to
Georgia’s Rule 701 (a) (3)), which requires that a lay opinion not be “based on
scientific, technical, or other specialized knowledge within the scope of Rule
702”).
10
for the purpose of becoming experts in accident reconstruction. And
accident reconstruction is generally a discipline requiring
“knowledge, skill, experience, training, or education” within the
plain language of Rule 702. See, e.g., Griego v. State Farm Mut.
Automobile Ins. Co., 839 F. App’x 258, 261 (II) (A) (10th Cir. 2020)
(applying requirements of Rule 702 to the testimony of plaintiff’s
private accident reconstruction expert); United States v. Wiggins,
708 F. App’x 105, 109-10 (4th Cir. 2017) (applying Rule 702
requirements to federal officer testifying as to accident
reconstruction); Hanson v. Waller, 888 F2d 806, 811 (III) (11th Cir.
1989) (applying the requirements of Rule 702 to the testimony of a
law enforcement officer testifying on accident reconstruction).
In this case, Sergeant Fallin conducted multiple tests,
performed an accident reconstruction, and ultimately testified that
Kristie should have been able to see the truck from approximately
one-half mile away; that she had 27 seconds before she reached the
truck while traveling at 70 miles per hour; that nothing prevented
Kristie from seeing the truck, which was lighted on the sides as well
11
as by headlights; that there were no skid marks to indicate braking
by Kristie; that Kristie’s vehicle left a steer mark for approximately
68 feet before the point of impact; and that Kristie must have been
distracted by something to cause her to fail to slow down.5 This
conclusion is based on more than just Sergeant Fallin’s own
perception of the scene of the wreck as an investigating officer and
necessarily involves the application of “technical or other specialized
knowledge.” See OCGA § 24-7-702.
(b) Having determined that the portion of Sergeant Fallin’s
testimony that is disputed constitutes expert testimony within the
meaning of Rule 702, we must now address whether Georgia has
retained the so-called “investigating officer” rule or whether the trial
court should have conducted a Daubert analysis. Decades ago, the
Court of Appeals broadly proclaimed, with little analysis, that
“[t]here can be no doubt a police officer with investigative experience
on automobile collisions is an expert.” Clark, 202 Ga. App. at 392 (3).
5 Sergeant Fallin testified that his investigation showed that Kristie was
not using her cell phone prior to the wreck.
12
This holding was carried forward to one of the cases relied on by both
the trial court and the Court of Appeals here. See Fortner, 289 Ga.
App. at 545 (1) (“It has long been recognized that a police officer with
investigative training and experience on automobile collisions is an
expert[.] . . . Such an officer is an expert even if he is not trained to
reconstruct traffic accidents.” (citation and punctuation omitted)).
As a result, under the investigating officer rule, the Court of Appeals
has explained that it is an abuse of discretion for “a trial court to
exclude the investigating officer’s testimony about the cause of the
accident,” id., such that the trial court need not conduct a Daubert
analysis.
However, both Clark and Fortner were decided before our
current Evidence Code took effect in 2013.6 And we have expressly
held that where a provision of our current Evidence Code is
materially identical to the Federal Rules of Evidence, the new
provision “reflects the federal rule’s meaning, displacing any other.”
6 See Knight, 299 Ga. at 288 n.4 (current Evidence Code applies in cases
tried on or after January 1, 2013).
13
Almanza, 304 Ga. at 558 (2). In such instances, Georgia courts
should not look to cases decided under the former Evidence Code
because that precedent did not survive the adoption of the new
Evidence Code. See id.7 This principle is true even where, as White
points out here, the new statutory language is materially identical
to the former statute it replaced. See id. (concluding it is
“inconsequential” that the medical treatment and diagnosis hearsay
exception was substantively unchanged between the old and new
Evidence Code; because the new law mirrors Federal Rule 803 (4),
“it is now read as interpreted by the federal appellate courts as of
the effective date of the new Code”). Therefore, where, as here, the
relevant Georgia evidentiary rule is materially identical to a Federal
Rule of Evidence, we no longer look to those cases decided under our
former Evidence Code for guidance, turning instead to where the
General Assembly clearly directed us: decisions of the Supreme
7 We note, however, that where a provision of our former Evidence Code
is retained in our current Code and there is no materially identical provision
in the Federal Rules of Evidence, our case law interpreting that former
provision still applies. See Almanza, 304 Ga. at 557 (2).
14
Court of the United States and the federal Courts of Appeals. See
Ga. L. 2011, p. 100 § 1.8
Rule 702, as interpreted by the Supreme Court, “imposes a
special obligation upon a trial judge to ensure that any and all
scientific testimony is not only relevant, but reliable.” Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 147 (II) (A) (119 SCt 1167, 143
LE2d 238) (1999) (citation and punctuation omitted). See also
Dubois v. Brantley, 297 Ga. 575, 580 (2) (775 SE2d 512) (2015)
(recognizing that Federal Rule of Evidence 702 “requires a trial
court to sit as a gatekeeper and assess the reliability of proposed
expert testimony, applying the principles identified in Daubert . . .
and its progeny” (citations and punctuation omitted)). And in
8 To the extent the Court of Appeals has continued to rely on cases
decided under our former Evidence Code to interpret our Rule 702 with respect
to expert testimony provided by investigating officers in civil cases, those cases are expressly disapproved. See, e.g., Miller, 363 Ga. App. at 391 (4) (c); Clack
v. Hasnat, 354 Ga. App. 502, 505 (2) (a) (841 SE2d 210) (2020) (“It has long
been recognized that a police officer with investigative training and experience
on automobile collisions is an expert[.]” (quoting Fortner, 289 Ga. App. at 545
(1)); Brown v. Tucker, 337 Ga. App. 704, 706 (1) (788 SE2d 810) (2016) (citing
Fortner for the proposition that an officer with investigative training and
experience may generally offer an expert opinion about a vehicular collision).
15
adopting Rule 702, the General Assembly did not create a carve-out
for law enforcement officers testifying as experts. See OCGA § 24-7-702 (a) (providing that, with limited exceptions not applicable here,
“this Code section shall apply in all proceedings” (emphasis
supplied)).
White argues, nonetheless, that the investigating officer rule
is actually just a streamlined application of the Daubert standard.
We are not persuaded that this is only a simple matter of semantics.
“[T]he whole premise of Rule 702 is that a trial court must act as a
‘gatekeeper’ to ensure the relevance and reliability of expert
testimony.” Dubois, 297 Ga. at 585 (2) (citation and punctuation
omitted). As the Eleventh Circuit explained, “while an expert’s
overwhelming qualifications may bear on the reliability of his
proffered testimony, they are by no means a guarantor of reliability.”
Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F3d 1333,
1341 (II) (A) (11th Cir. 2003). And, “[b]y the same token, a reliable
opinion expressed by a genuinely qualified expert may not help the
jury if it does not pertain to a fact at issue in the case.” Id. In sum,
16
nothing in the language of Rule 702 supports the trial court’s
conclusion that an investigating officer’s testimony is somehow
exempted from the statute’s admissibility standard or comports with
White’s argument that the investigating officer rule is somehow a
streamlined version of Daubert’s clear standards. Accordingly, we
conclude that when an investigating officer is called to provide an
expert opinion, the trial court must perform the same gatekeeping
function under Rule 702 that it is required to do with all expert
witnesses.
2. Turning to our second question – whether the trial court
properly admitted Sergeant Fallin’s testimony and part of his report
– we are mindful that the trial court has broad discretion under Rule
702 to admit or exclude expert testimony. See Knight, 299 Ga. at 289
(“Like most questions of admissibility, whether expert testimony
ought to be admitted . . . is a question committed to the sound
discretion of the trial court.”). See also General Elec. Co. v. Joiner,
522 U.S. 136, 138 (118 SCt 512, 139 LE2d 508) (1997) (an appellate
court applies an abuse of discretion standard when reviewing a trial
17
court’s decision to admit or exclude expert testimony). However,
based on our holding in Division 1, we conclude that the trial court
abused its discretion by failing to fully exercise its gatekeeping
function under Rule 702. See Knight, 299 Ga. at 289-90 (In
determining whether expert testimony is reliable, the trial court
must consider “whether the methodology by which the expert
reaches his conclusions is sufficiently reliable.”); McClain v.
Metabolife, Intl., Inc., 401 F3d 1233, 1238 (II) (11th Cir. 2005) (“A
trial court . . . abuses its discretion by failing to act as a gatekeeper”
to ensure the reliability of expert testimony.).
Specifically, the trial court did not consider either the
reliability or helpfulness of Sergeant Fallin’s testimony. Although
Miller does not dispute Sergeant Fallin’s qualifications as an
accident-reconstruction expert, the trial court is still required to
assess the remaining two prongs of the Daubert test: reliability and
helpfulness. See United States v. Frazier, 387 F3d 1244, 1260 (III)
(A) (11th Cir. 2004) (“While there is inevitably some overlap among
the basic requirements – qualification, reliability, and helpfulness –
18
they remain distinct concepts and the courts must take care not to
conflate them.”). These two prongs are well-established under
federal law.
Reliability requires a case-specific inquiry. See Kumho Tire
Co., 526 U.S. at 141. Because “[t]here are many different kinds of
experts and many different kinds of expertise, . . . it follows that the
test of reliability is a flexible one, the specific factors ‘neither
necessarily nor exclusively applying to all experts in every case.’”
HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 643 (1) (697 SE2d
770) (2010) (quoting Kumho Tire Co., 526 U.S. at 141). See also
Allison v. McGhan Med. Corp., 184 F3d 1300, 1312 (III) (C) (1) (11th
Cir. 1999) (discussing four noninclusive factors courts should use as
a starting point in determining reliability).
With respect to the helpfulness prong, we have explained that
the proposed testimony must “logically advance[] a material aspect”
of the case. Knight, 299 Ga. at 290 (punctuation omitted; citing Boca
Raton Community Hosp. v. Tenet Health Care Corp., 582 F3d 1227,
1232 (II) (11th Cir. 2009)). In other words, the testimony must “fit”
19
an issue that the jury is charged with deciding in order to be helpful
to the jury. Id. at 291. See also Knepfle v. J-Tech Corp., 48 F4th 1282,
1294 (II) (B) (11th Cir. 2022) (“[E]xpert testimony generally helps
the trier of fact when the testimony concerns matters that are
beyond the understanding of the average lay person” and “has a
justified scientific relationship to the pertinent facts.” (citations and
punctuation omitted)).
Although White asks this Court to conduct this analysis on
appeal, we have explained that “[a]n appellate court should not
conduct the analysis of [the expert’s] methodology in the first
instance.” Toyo Tire North American Mfg. v. Davis, 299 Ga. 155, 160
(2) (787 SE2d 171) (2016) (“Rule 702 imposes a special obligation
upon a trial judge to ensure that expert testimony is relevant and
reliable.” (emphasis in original; citation and punctuation omitted)).
Accordingly, we vacate the Court of Appeals’ opinion and direct the
Court of Appeals to vacate the trial court’s order and remand the
case for further proceedings consistent with this opinion.
Judgment vacated and case remanded with direction. All the
20
Justices concur.
21