The Hallmark Standard: Nevada Supreme Court Recognizes Expert Standards of Federal Court Modifying NRS 50.275 and Federal Rule of Evidence 702
Nevada Supreme Court recognizes Expert Standards of Federal Court modifying NRS 50.275 and Federal Rule of Evidence 702 (The Daubert Standard). It will be known as the Hallmark standard.
In a decision that came out July 24, 2008, the Nevada Supreme Court decided that Nevada District Courts and judges were not properly admitting experts and their testimony as evidence in trials.
Basically, Nevada Law did not recognize or spell out exactly what tests should be used by Courts to classify experts and their testimony. For years, mediocre experts were allowed to testify as to what they thought based on their credentials. For example, an expert who went to medical school and had a degree in mechanical engineering was allowed to be classified as a ‘biomechanical engineer’ per his own classification. This will no longer be allowed.
In the ruling of Hallmark v Eldridge, 124 Nev. Adv. Op. No. 48, 2008, the court laid out the specific consideration a court and attorney must be aware of when hiring an expert and laying foundation for expert testimony in a Nevada Court.’
In a lengthy opinion, the court ruled that opinions of experts must be based on a methodology, and not generalizations. Too often, accident reconstructionists, used to practicing in Nevada would merely do calculations of speeds based on their perceptions and make an ‘expert opinion’ based on their criteria, ‘ to a reasonable degree of medical and/or biomechanical’ probability in an automobile accident case. The court ruled this is in essence a joke and not expert testimony because it lacks a methodology of encompassing a totality of factors. The following is the format an attorney must follow when assessing an
expert:
Are they qualified? Do they possess:
1.) Scientific, technical, or specialized knowledge; proven by
a.) Formal Schooling and academic degrees
b.) Licensure
c.) Employment experience
d.) Practical experience and specialized training
2.) Recognized field of expertise
3.) Testable and has been tested
4.) Publish and subject to peer review
5.) Generally accepted in the scientific community
Do they have a methodology?
6.) Based more on particularized facts, rather than assumptions,
conjecture, or generalizations.
7.) If opinion was formed by calculation, experiement, or technique,
was it then controlled by known standards
8.) Was the testing similar to conditions at the time of incident
9.) Do the calculations experiments, or techniques have a known error rate.
***These factors are not exhaustive, may not be given equal weight, and may not apply exactly to every case.
Contact Benson & Bingham, Nevada Attorneys today before trusting your complex legal matter to any Nevada or Las Vegas personal injury attorney.
