Strategies, Challenges, and Answers

Credentialing A Biomechanical Expert In Nevada

In the recent case of Hallmark v. Eldridge, 124 Nev. 492, 189 P.3d 646 (2008), the Nevada Supreme Court addressed the admissibility of expert witnesses in general and biomechanical experts in particular.  In its July 24, 2008 opinion, the Supreme Court did not create an outright exclusion of all biomechanical expert testimony.  However, a firm foundation must be laid must before biomechanical testimony can be admitted.  The standard for determining whether an expert can be used is found in N.R.S. 50.275.  The statute says that “a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge” so long as the testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue.

978477_broken_leg_xray In determining whether a witness qualifies as an expert, the Court said that the party offering the witness can rely on

1) Formal schooling and academic degrees;
2) Licensure;
3) Employment experience;
4) Practical experience and specialized training;

to demonstrate that the witness is an expert.  The Court said that the defendant laid proper foundation and that the proffered witness was an expert in biomechanical engineering.

The Court more readily questioned whether the witness’ testimony would assist the trier of fact.  The court felt that if the opinions were not based upon a reliable methodology, that those opinions would not help the jury.  The court said that before the methodology can be considered reliable, it must be:

1) Within a recognized field of expertise;
2) Testable and have been tested;
3) Published and subjected to peer review;
4) Generally accepted within the scientific community; and
5) Based on facts particular to the specific case and not on generalizations, conjecture or speculation;

Whether or not the methodology has been generally accepted in the scientific community is not always determinative but where it is not generally accepted the other factors will become more critical.

The Court was particularly critical of the foundation and methodology.  The attorney should have questioned whether biomechanics was a recognized field of expertise.  The attorney did not demonstrate that the testing could have confirmed the opinion.  The attorney should have also shown that the expert’s opinions were based upon publications that were peer reviewed.

Finally the court said that the opinions offered were speculative because there was no evidence regarding the vehicles’ starting points, their speeds at impact, the length of time that the vehicles remained in contact and the angle at which the vehicles collided.  The biomechanical expert must be able to address all the variables (probably through an accident reconstruction).  Therefore, in Nevada if the strict foundational requirements can be met, a biomechanical engineering expert opinion should be admissible.

About Michael Mills

Mr. Mills practices in the area of civil litigation and appeals, with particular experience in matters involving trucking liability, insurance defense, insurance coverage, premises liability, products liability and defense of personal injury. Mr. Mills is a member of the Trucking Insurance Defense Association, the Defense Research Institute Trucking Committee and the Nevada Motor Transport Association. Mr. Mills is licensed to practice before the Nevada Supreme Court and the Utah Supreme Court. He is also licensed to appear before the United States Supreme Court, the U.S. District Courts for the Districts of Nevada and Utah, as well as the U.S. Court of Appeals for the Ninth Circuit. Mr. Mills has created 3 Blogs for the benefit of the insurance industry. He serves as editor and publisher of the Nevada Insurance Law Blog, the Nevada Coverage and Bad Faith Blog and the Nevada Trucking Law Blog.

Find Mike Mills on Google+