Posted on September 9, 2014
Nevada’s rule on the admissibility of expert witness testimony is codified in Nevada Revised Statute 50.275, which states that a qualified expert witness may testify as to matters within that expert’s scope of knowledge, so long as such testimony will assist the trier of fact to understand the evidence or determine a fact in issue. While the Nevada Legislature laid the foundation to allow expert testimony to be presented and granted judges the discretion as to whether to allow such testimony, it was not until Hallmark v. Eldridge (2008) 124 Nev. 492, that the Nevada Supreme Court gave further clarification on the factors judges were to consider when admitting expert testimony evidence.
In Hallmark, the Nevada Supreme Court clarified the three requirements that must be satisfied before an expert witness is able to testify pursuant to NRS 50.275. First, the witness must be qualified in an area of scientific, technical, or other specialized knowledge (known as the “qualification requirement”). Second, the witness’s specialized knowledge must assist the trier of fact to understand the evidence or to determine a fact in issue (known as the “assistance requirement”). Finally, the witness’s testimony must be limited to the matters within the scope of the witness’s knowledge (known as the “limited scope requirement”).
In order to meet the qualification requirement, courts are advised to consider the witness’s formal schooling and academic degrees, as well as licensure, employment experience, practical experience, and specialized training. Notably, the Court warned that the enumerated factors were not an exhaustive list, and other factors may be considered. What these factors all have in common is their underlying attempt to show that the witness is competent to provide testimony in a specialized field. Where the witness is not qualified, the witness should not be able to testify.
Likewise, in order to meet the assistance requirement, the Court determined that an expert’s testimony will assist the trier of fact only when it is relevant and the product of reliable methodology, considering factors including whether the opinion is within a recognized field of expertise, is testable and has been tested, published and subject to peer review, generally accepted in the scientific community, and based more on particularized facts rather than assumption, conjecture, or generalization. Lastly, to meet the requisite limited scope requirement, the witness must only testify as to matters which are within the scope of his specialized knowledge.
While NRS 50.275 tracks the Federal Rule of Evidence (“FRE”) regarding admissibility of expert testimony, namely FRE Rule 702, Hallmark and its progeny markedly differ from those holdings handed down in federal court regarding the rigid application of the factors to be considered when determining whether a witness is to be qualified as an expert. Particularly, while the federal court rulings have focused on a stricter application of the factors as enumerated in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, essentially the Federal Court’s equal to Nevada Supreme Court’s Hallmark, the Nevada Supreme Court struck down a strict application of the Hallmark factors, and has opted to allow more judicial freedom in determining whether to allow a witness to testify as an expert. Accordingly, there is usually room to argue that Plaintiff’s proposed expert witness should not be deemed an expert witness, and Hallmark provides the springboard for such an argument.
Justin R. Taruc is an Associate with Kring & Chung, LLP‘s Las Vegas, NV office. He can be reached at (702) 260-9500 .