CourtListener 10680052

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317 Ga. 22
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S22G0905. MILLER et al. v. GOLDEN PEANUT COMPANY, LLC
et al.

MCMILLIAN, Justice.

This appeal, arising out of a fatal collision between a tractor-

trailer 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, three-

prong 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

a motion to exclude the following portion of Sergeant Fallin’s SCRT

report and any related testimony:

2
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 way1 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

that an investigating officer is presumptively qualified as an expert,

citing Fortner v. Town of Register, 289 Ga. App. 543, 545 (1) (657

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 mile-
per-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
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 cross-

appealed 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 three-

prong 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

testimony is for the jury.” (citation and punctuation omitted)).

We granted certiorari and posed two questions:

4
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

for both lay testimony and expert testimony. OCGA § 24-7-701

(“Rule 701”), which governs the admissibility of lay witness opinion

testimony, provides:

5
(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

A witness who is qualified as an expert by

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 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.
6
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

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

7
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

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

8
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

amendment to Federal Rule 7014 “was designed to eliminate the risk

that the reliability requirements set forth in Rule 702 will be evaded

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.”
9
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

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. Appx. 258, 261 (II) (A) (10th Cir. 2020)

10
(applying requirements of Rule 702 to the testimony of plaintiff’s

private accident reconstruction expert); United States v. Wiggins,

708 F. Appx. 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

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

11
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).

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

5 Sergeant Fallin testified that his investigation showed that Kristie was

not using her cell phone prior to the wreck.
12
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.” (citations 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.”

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

6 See Knight, 299 Ga. at 288 n.4 (current Evidence Code applies in cases

tried on or after January 1, 2013).
13
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

Court of the United States and the federal Courts of Appeals. See

Ga. L. 2011, p. 100, § 1.8

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).
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

14
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

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,

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
“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,

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

16
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 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

17
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

— they remain distinct concepts and the courts must take care not

to conflate them.”). These two prongs are well established under

federal law.

18
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) (b)

(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”

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

19
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., Inc. 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
Justices concur.

20
Decided August 21, 2023.

Certiorari to the Court of Appeals of Georgia — 363 Ga. App.

384.

Kynes Law, Leland H. Kynes; The King Firm, J. L. King II; The

Sullivan Firm, Bree Sullivan-Howell, for appellants.

Caplan Cobb, Michael A. Caplan, T. Brandon Waddell; Cozen

O’Connor, Danielle C. Le Jeune, Tia C. Ghattas, Josh M.

Greenbaum; Bovis Kyle Burch & Medlin, Steven J. Kyle, William R.

Bryant, for appellees.

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