Andrew James Wright v. State

[[COURTLISTENER_SUBOPINION {"id":"10772034","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
FOURTH DIVISION
                               MERCIER, C. J.,
                          DILLARD, P. J., and LAND, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               https://www.gaappeals.us/rules



                                                                  December 30, 2024




In the Court of Appeals of Georgia
 A25A0076. WRIGHT v. THE STATE.

      Dillard, Presiding Judge.

      The State has charged Andrew James Wright with one count of homicide by

vehicle based on driving under the influence of drugs to the extent that he was a

less-safe driver (“DUI less safe”) and one count of homicide by vehicle based on

reckless driving. In this interlocutory appeal, Wright contends the trial court erred in

granting the State’s motion to exclude the testimony of his proffered expert witness

under OCGA § 24-7-702 (“Rule 702”). For the following reasons, we reverse.

      The record shows that on August 19, 2020, while driving a tractor trailer,

Wright struck a vehicle operated by Susan Chambers—which tragically resulted in her
death. Wright’s blood tested positive for various prescription drugs,1 and he was

charged as set forth above. In November 2022, Wright filed a notice of his intent to

call as a defense witness an expert in pharmacology and toxicology. Almost eighteen

months later, in April 2024, the State filed a motion to exclude the testimony of

Wright’s proposed expert.

      At the subsequent hearing, Wright’s proposed expert, a professor of clinical and

administrative pharmacology at the University of Georgia College of Pharmacy,

testified. The professor has worked at the College of Pharmacy since 1981; he has a

doctorate in pharmacology and toxicology; he teaches and lectures on pharmacology

and toxicology, among other subjects; and he oversees a program within the College

of Pharmacy for students who have potential drug or alcohol issues. As defined by the

professor, pharmacology is “the study of how drugs produce their effects[,]”

including not only the methods by which drugs produce their effects and side effects,

but also how “drugs are absorbed, metabolized, excreted and distributed in the body.”

Toxicology is similar to pharmacology but focuses on “the toxic or adverse events of

      1
       Chambers’s post-mortem blood test was positive for amphetamine and
methamphetamine, but the trial court orally denied Wright’s motion to admit this
evidence. Although Wright filed a motion for reconsideration in March 2024, it does
not appear the trial court has yet ruled on that motion.
                                          2
drugs and chemicals.” Prior to this case, the professor had testified as an expert in

both civil and criminal cases in several states, and he was accepted as an expert in

pharmacology and toxicology for purposes of the hearing in Wright’s case. In addition

to teaching and overseeing the student-impairment program, the professor has also

done animal studies on controlled substances, including cocaine.

      In reaching his opinion in this case, the professor reviewed the results of

Wright’s blood test, which was taken approximately four hours after the collision, as

well as Wright’s prescription records.2 The professor explained that Wright tested

positive for Tramadol, a non-opiate pain reliever; amphetamine; Gabapentin;

Imipramine, an anti-depressant; and Desipramine, which “is actually a breakdown of

metabolite from” Imipramine. Wright had prescriptions for Tramadol; amphetamine,

in the form of Adderall (which is used to treat ADHD); Gabapentin; and Imipramine.

Wright’s blood test showed that the amount of Tramadol present was at the low end

of the therapeutic range and the amount of amphetamine was actually below the

therapeutic range. The other drugs were not quantified.




      2
        Neither the result of Wright’s blood test nor his prescription records are a part
of the record on appeal.
                                           3
      When asked by defense counsel what effect, if any, the professor would expect

these drugs to have on Wright at the time of the blood draw or the collision, the

professor explained that because Wright had been taking these drugs for months or

years, he would expect Wright to be “able to function.”3 The professor went on to

state that, over many years, he has observed students taking Adderall, Tramadol, and

Gabapentin, and at “very low, low therapeutic levels” (such as those found in

Wright’s blood), the drugs should not have “affect[ed] his ability to operate a

machine.” Moreover, many people taking these drugs operate vehicles and otherwise

function normally; and the professor testified that if Wright had any issues with

driving, his clinician would have noted it. On cross-examination, the professor

explained that while he had not undertaken any human studies regarding the specific

drugs found in Wright’s blood and their impact on driving, he was familiar with the

literature in this area, which he reviewed as a part of his academic teaching. Notably,

the professor explained that this opinion was based on the specialized knowledge of

his areas of expertise, including pharmacological principles.




      3
        The professor admitted that these drugs—in high doses or when newly
prescribed—could impair a person’s ability to operate a vehicle safely.
                                          4
      Following that hearing, the trial court granted the State’s motion to exclude the

testimony of the professor. Wright thereafter filed an application for interlocutory

review to this Court, which we granted.4 This appeal follows.

      Before we turn to Wright’s claim of error, some historical context and general

review may be helpful. Effective July 1, 2022, the General Assembly repealed the

former statute which specifically governed the admission of expert testimony in

criminal cases,5 and amended Rule 702 such that it “now governs the admissibility of

expert testimony in criminal as well as civil cases.”6 And with this amendment, the

General Assembly “extended to criminal cases the federal standard of admissibility




      4
          See Order, Case No. A24I0250 (Ga. App. July 17, 2024).
      5
        See OCGA § 24-7-707 (2022) (“In criminal proceedings, 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.”); 2022 Ga. Laws, p. 201, § 2 (repealing former OCGA § 24-7-707).
      6
        Wilson v. State,
370 Ga. App. 399
, 406 (2) (
897 SE2d 597
) (2024); see OCGA
§ 24-7-702 (a) (“[T]he provisions of this Code section shall apply in all
proceedings.”); 2022 Ga. Laws, p. 201, §§ 1 (amending OCGA § 24-7-702), 3 (noting
effective date).
                                          5
of expert testimony” articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc.7 and

its progeny.8

      The amended version of Rule 702 (b) provides:

      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.9




      7
509 U.S. 579
(
113 SCt 2786
, 125 LE2d 469) (1993).
      8
       Garrison v. State,
319 Ga. 711, 725
(3) (b) (
905 SE2d 629
) (2024) (punctuation
omitted); accord Wilson, 370 Ga. App. at 407 (2).
      9
          OCGA § 24-7-702 (b).
                                          6
Because Georgia’s Rule 702 is modeled after Rule 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” for guidance.10

      In determining whether an expert’s testimony is admissible under Daubert, the

trial court acts as “a gatekeeper, assessing both the witness’ qualifications to testify

in a particular area of expertise and the relevancy and reliability of the proffered

testimony.”11 The purpose of Daubert’s gate-keeping requirement is to “make certain

that an expert, whether basing testimony upon professional studies or personal

experience, employs in the courtroom the same level of intellectual rigor that




      10
        Miller v. Golden Peanut Co., LLC,
317 Ga. 22, 26
(1) (a) (
891 SE2d 776
)
(2023). Georgia’s current Evidence Code took effect in 2013.
Id. at 28
(1) (b). And
when, 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.”
Id. at 28-29
(1) (b).
      11
        Garrison,
319 Ga. at 726
(3) (c) (i) (punctuation omitted); see Miller,
317 Ga.
at 29
(1) (b) (“The whole premise of Rule 702 is that a trial court must act as a
‘gatekeeper’ to ensure the relevance and reliability of expert testimony.” (punctuation
omitted)).
                                           7
characterizes the practice of an expert in the relevant field.”12 And reliability requires

“a case-specific inquiry.”13

       Importantly, in making its assessment, the trial court “may not exclude an

otherwise sufficient expert opinion simply because it believes that the opinion is

not—in its view—particularly strong or persuasive.”14 Rather, the weight to be given

to “admissible expert testimony is a matter for the jury.”15 Ultimately, courts must

       12
        Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 152
(II) (B) (
119 SCt 1167
,
143 LE2d 238) (1999); see Smith v. Ford Motor Co.,
215 F3d 713, 718
(II) (A) (7th Cir.
2000) (Flaum, J.) (“[A] court should consider a proposed expert’s full range of
practical experience as well as academic or technical training when determining
whether that expert is qualified to render an opinion in a given area.”).
       13
         Miller,
317 Ga. at 30
(2); see
id.
(“Because there are many different kinds of
experts and many different kinds of expertise, it follows that the test of reliability is a
flexible one[.]” (punctuation omitted)).
       14
        Emory University v. Willcox,
355 Ga. App. 542
, 543 (1) (
844 SE2d 889
) (2020)
(punctuation omitted); accord Fireman’s Fund Ins. Co. v. Holder Constr. Grp., LLC,
362 Ga. App. 367
, 372 (1) (
868 SE2d 485
) (2022); see Rosenfeld v. Oceania Cruises, Inc.,
654 F3d 1190, 1193
(11th Cir. 2011) (explaining that it is not the role of the trial court
“to make ultimate conclusions as to the persuasiveness of the proffered evidence”
and that “in most cases, objections to the inadequacies of a study are more
appropriately considered an objection going to the weight of the evidence rather than
its admissibility” (punctuation omitted)).
       15
         Willcox, 355 Ga. App. at 543 (1) (punctuation omitted); see Ambrosini v.
Labarraque,
101 F3d 129, 134
(II) (DC Cir. 1996) (“[O]nce an expert has explained his
or her methodology, and has withstood cross-examination or evidence suggesting that
the methodology is not derived from the scientific method, the expert’s testimony, so
                                            8
remain cautious not to “improperly use the admissibility criteria to supplant”16 the

sacrosanct right to a jury trial17 because “[v]igorous cross-examination, presentation

of contrary evidence, and careful instruction on the burden of proof are the traditional

and appropriate means of attacking shaky but admissible evidence.”18

       When applying Rule 702, the trial court has “broad discretion” to accept or

reject “the qualifications of an expert witness, and we review a trial court’s ruling on

both the qualification of an expert and the admissibility of that expert’s testimony for

long as it ‘fits’ an issue in the case, is admissible under Rule 702 for the trier of fact
to weigh.”).
       16
            Moore v. Intuitive Surgical, Inc.,
995 F3d 839, 850
(III) (11th Cir. 2021).
       17
          See Ga. Const. Art. I, Sec. I, Para. XI (a) (providing that the right to a jury trial
“shall remain inviolate”); see also U.S. Const. amend. VI (“In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed
. . .”); Ramos v. Louisiana,
590 U.S. 83, 93
(I) (
140 SCt 1390
,
206 LEd2d 583
) (2020)
(Gorsuch, J.) (“[T]he Sixth Amendment right to a jury trial is ‘fundamental to the
American scheme of justice[.]’”); Duncan v. Louisiana,
391 U.S. 145, 155
(I) (
88 SCt
1444
, 20 LE2d 491 (1968) (White, J.) (“A right to jury trial is granted to criminal
defendants in order to prevent oppression by the Government.”). See generally Sec. &
Exch. Comm’n v. Jarkesy, __ U.S. __ (II) (A) (1) (
144 SCt 2117
, 2128,
219 LEd2d
650
) (2024) (Roberts, C.J.) (noting that “[t]he right to trial by jury is ‘of such
importance and occupies so firm a place in our history and jurisprudence that any
seeming curtailment of the right’ has always been and ‘should be scrutinized with the
utmost care’”) (citation omitted)).
       18
            Daubert,
509 U.S. at 596
(III); accord Willcox, 355 Ga. App. at 544 (1).
                                               9
an abuse of discretion.”19 Finally, as the party seeking to rely on the proffered expert,

Wright bore the burden of establishing that the professor’s testimony was reliable

within the meaning of Rule 702.20

      With the foregoing guiding principles in mind, we will now address the merits

of Wright’s particular claim of error. Specifically, he maintains the trial court

improperly considered the persuasiveness or weight of the proffered expert testimony

and, in doing so, failed to act as a “gatekeeper” and abused its discretion. We agree.

      In making its ruling, the trial court concluded that the professor “otherwise”

qualified as an expert in toxicology and pharmacology based on his training and

experience. Even so, the trial court determined that the professor’s proposed

testimony “would not be sufficiently reliable so as to help the trier of fact” as required
19
        Wilson, 370
Ga. App. at 407 (2) (punctuation omitted); see Miller,
317 Ga. at
30
(2) (“[T]he trial court has broad discretion under Rule 702 to admit or exclude
expert testimony.”); Ronald L. Carlson & Michael Scott Carlson, CARLSON ON
EVIDENCE 385 (8th ed. 2023) (“While the trial court has authority to exclude expert
testimony, it must exercise it carefully.”).
      20
         Fireman’s Fund Ins., 362 Ga. App. at 371 (1); see Preferred Women’s Healthcare
LLC v. Sain,
367 Ga. App. 821
, 826 (1) (
888 SE2d 599
) (2023) (“Importantly, the
proponent of the testimony does not have the burden of proving that it is scientifically
correct, but only that by a preponderance of the evidence, it is reliable.” (punctuation
omitted)); U.S. v. Esformes,
60 F4th 621, 637
(III) (D) (11th Cir. 2023) (Pryor, C.J.)
(same).
                                           10
under Rule 702 (b) (1) because the professor had “not engaged in any studies, field

tests or direct evaluations concerning the effects of drugs on the ability of a human

being to operate a motor vehicle safely.” And because the professor could not testify

to the “direct result . . . of drugs on a human being’s ability to operate a motor vehicle

safely,” the court found that he had not reliably applied principles and methods to the

facts of this case as required under Rule 702 (b) (4).

       In this case, Wright is charged with, inter alia, homicide by vehicle based on

DUI less safe.21 In order to convict Wright of this charge, the State is required to prove

that he drove a vehicle while “[u]nder the influence of any drug to the extent that it

[was] less safe” for him to drive.22 As a result, contrary to the trial court’s finding, the

professor’s specialized knowledge of pharmacology and toxicology would help the

trier of fact determine an important fact at issue: whether Wright was a less-safe driver




       21
         OCGA § 40-6-393 (a) (“Any person who, without malice aforethought,
causes the death of another person through the violation” of various Code sections,
including driving under the influence in violation of OCGA § 40-6-391, “commits the
offense of homicide by vehicle[.]”).
       22
           OCGA § 40-6-391 (a) (2) (“A person shall not drive or be in actual physical
control of any moving vehicle while . . . [u]nder the influence of any drug to the extent
that it is less safe for the person to drive[.]”).
                                             11
as a result of his prescription medications.23 And while the trial court specifically

found the professor’s testimony would not be helpful because it lacked reliability (in

that the professor had not engaged in any human studies, field testing, or direct

observation of drivers), the factual basis of an expert opinion “goes to the credibility

of the testimony, not the admissibility, and it is up to the opposing party to examine

the factual basis for the opinion in cross-examination.”24 Moreover, while there is

“inevitably some overlap among the basic requirements—qualification, reliability, and


       23
          See Rule 702 (b) (1) (setting forth the requirement that the “expert’s
scientific, technical, or other specialized knowledge . . . help the trier of fact to
understand the evidence or to determine a fact in issue”); Miller,
317 Ga. at 30
(2)
(“[T]he proposed testimony must logically advance a material aspect of the case.”
(punctuation omitted)); Cordial Endeavor Concessions of Atlanta, LLC v. Gebo Law
LLC,
370 Ga. App. 528
, 530 (2) (
898 SE2d 259
)(2024) (“Expert testimony is helpful
to the trier of fact only to the extent that the testimony is relevant to the task at hand
and logically advances a material aspect of the case.” (punctuation omitted)).
       24
          Willcox, 355 Ga. App. at 545 (2); see Smith,
215 F3d at 718
(II) (A) (“The
soundness of the factual underpinnings of the expert’s analysis and the correctness of
the expert’s conclusions based on that analysis are factual matters to be determined
by the trier of fact[.]”); U.S. v. L.E. Cooke Co., Inc., 991 F2d 336, 342 (II) (A) (6th Cir.
1993) (Milburn, J.) (“The Federal Rules of Evidence allow an expert great liberty in
determining the basis of his opinions and whether an expert opinion should be
accepted as having an adequate basis is a matter for the trier of fact to decide.”). See
also CARLSON, supra note 19, pp. 392-93 (“Is it only the writings of the expert who
is called to the stand which count? The answer to this inquiry is ‘no.’ The supportive
writing can come from other authors in the professional field, as well as from the
expert on the stand.”).
                                            12
helpfulness—they remain distinct concepts and the courts must take care not to

conflate them.”25 Here, the trial court appears to have conflated helpfulness and

reliability.26

       As to whether the professor reliably applied pharmacological principles and

methods to the facts of this case within the meaning of Rule 702 (b) (4), the trial court

found the professor had not reliably applied these principles because he could not

testify directly as to the impact of drugs on a human’s ability to drive. In reaching his

opinion, the professor reviewed the results of Wright’s blood test, which included the

levels of various medications present, as well as Wright’s prescription history. And

the professor testified that, in his opinion, based on the evidence he considered, as

well as his knowledge of pharmacology (including his review of the literature, and his

personal experience with people taking the same drugs Wright was taking), Wright

would have been able to function normally, including driving. Ultimately, the trial

court “may not exclude an otherwise sufficient expert opinion simply because it




       25
            Frazier, 387 F3d at 1260 (III) (A); accord Willcox, 355 Ga. App. at 543 (1).
       26
            See supra note 25 & accompanying text.
                                             13
believes that the opinion is not—in its view—particularly strong or persuasive.”27

Instead, the weight to be given to “admissible expert testimony is a matter for the

jury.”28 But here, the trial court excluded the professor’s proposed testimony because

it found that the testimony was not particularly strong or persuasive.29 In doing so, the

court abused its discretion.30

      27
         Willcox, 355 Ga. App. at 543 (1) (punctuation omitted); accord Fireman’s Fund
Ins., 362 Ga. App. at 372 (1). Notably, as set forth above, the trial court conceded that
the professor “otherwise” qualified as an expert.
      28
        Willcox, 355 Ga. App. at 543 (1) (punctuation omitted); see Gayton v. McCoy,
593 F3d 610, 619
(II) (A) (7th Cir. 2010) (Williams, J.) (explaining that “[a]fter
hearing from all of the experts, and after vigorous cross-examination, it will be up to
the jury to determine” which factors, if any, caused the injury in question). In its
response brief, the State contends the professor’s testimony was unreliable because
the blood draw was several hours after the collision. But the timing of the blood draw
also goes to the weight of the expert’s testimony.
      29
           See supra note 14 & accompanying text.
      30
         See, e.g., Fireman’s Fund Ins., 362 Ga. App. at 373 (1) (a) (holding trial court
abused its discretion in excluding “an otherwise sufficient expert opinion based on its
belief that the opinion was not particularly strong or persuasive”); Rosenfeld,
654 F3d
at 1194
(granting new trial when trial court excluded plaintiff’s proposed expert on
flooring; flooring expert’s knowledge was beyond the understanding of the average
citizen; and defendant’s arguments that expert’s methods were “imprecise and
unspecific and based on incorrect assumptions” went to the weight and
persuasiveness of expert’s testimony, not its admissibility (punctuation omitted));
Gayton,
593 F3d at 618
(II) (A) (holding district court abused its discretion in finding
expert’s testimony unreliable; expert relied on the same record, including decedent’s
medical records, as other experts and provided a sufficient scientific basis for his
                                           14
      For all these reasons, we reverse the trial court’s ruling and remand the case for

further proceedings consistent with this opinion.

      Judgment reversed. Mercier, C. J., and Land, J., concur.




opinion); see also Willcox, 355 Ga. App. at 545-46 (2) (concluding trial court did not
abuse its discretion in denying defendants’ motion to exclude expert’s opinion
evidence even if, as the defendants argued, the opinion was “based upon inadequate
knowledge”).
                                          15