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What Instructions are Given to Expert Witnesses in Nevada?

INSTRUCTIONS REGARDING EXPERTS

EXPERTS INSTRUCTION 3EX.1:

EXPERT WITNESS: GENERAL

A witness who has special knowledge, skill, experience, training or education in a particular science, profession or occupation is an expert witness. An expert witness may give his or her opinion as to any matter in which he or she is skilled.

You should consider such expert opinion and weigh the reasons, if any, given for it. You are not bound, however, by such an opinion. Give it the weight to which you deem it entitled, whether that be great or slight, and you may reject it, if, in your judgment, the reasons given for it are unsound.

EXPERTS INSTRUCTION 3EX.2

EXPERT WITNESS: GENERAL (ALTERNATE)

[A witness] [witnesses] who [has] [have] special knowledge, skill, experience, training, or education in a particular subject [has] [have] testified to certain opinions. This type of witness is referred to as an expert witness. In determining what weight to give any opinions expressed by an expert witness, you should consider the qualifications and believability of the witness, the facts or materials upon which each opinion is based, and the reason for each opinion.

An opinion is only as good as the facts and reasons on which it is based. If you find that any such fact has not been proved, or has been disproved, you must consider that in determining the value of the opinions. Likewise, you must consider the strengths and weaknesses of the reason on which it is based.

[You must resolve any conflict in the testimony of the witnesses, weighing each of the opinions expressed against the others, taking into consideration the reasons given for the opinion, the facts relied upon by the witness, [his] [her] relative credibility and [his] [her] special knowledge, skill, experience, training and education.]

SOURCE/AUTHORITY

Prabhu v Levine, 112 Nev. 1538, 1546, 930 P.2d 103, (1996);

see also,

State v. Watts, 52 Nev. 453, 290 P.732 (1930).

USE NOTE

This is an alternate general witness instruction that includes witness conflict instructions.

EXPERTS INSTRUCTION 3EX.3:

EXPERT WITNESS: RELIANCE UPON MATTERS NOT ADMITTED IN EVIDENCE

An expert witness has testified about [his] [her] reliance upon [books] [treatises] [articles] [statements] that have not been admitted into evidence. Reference by the expert witness to this material is allowed so that the expert witness may tell you what [he] [she] relied upon to form [his] [her] opinions. You may not consider the material as evidence in this case. Rather, you may only consider the material to determine what weight, if any, you will give to the expert’s opinions.

SOURCE/AUTHORITY

NRS 50.285; NRS 50.305; see also Prabhu v. Levine, 112 Nev. 1538, 930 P.2d 103 (1996).

USE NOTE

See NRS 51.255 regarding learned treatises. The statute does allow learned treatises into evidence. Learned treatises are another way of proving deviation from the standard of care.

EXPERTS INSTRUCTION 3EX.4:

EXPERT WITNESS: HYPOTHETICAL QUESTION

A hypothetical question has been asked of an expert witness. In a hypothetical question, the expert witness is told to assume the truth of certain facts, and the expert witness is asked to give an opinion based upon those assumed facts. You must decide if all of the facts assumed in the hypothetical question have been established by the evidence. You can determine the effect of that admission upon the value of the opinion.

SOURCE/AUTHORITY

Wrenn v. State, 89 Nev. 71, 506 P.2d 418 (1973) (rejecting expert opinion testimony because assumed facts were not established).

USE NOTE

An earlier Nevada pattern jury instruction was reprinted from BAJI, and provided that if a fact contained in the hypothetical question is not established, the jurors can determine the “effect of that omission upon the value of the opinion.” NEVADA PATTERN JURY INSTRUCTIONS, CIVIL (Lexis-Nexis), Nev. J.I. 2.12. This is somewhat inconsistent with Wrenn v. State, supra, and perhaps inconsistent presentation of expert testimony. The old instruction seemed to assume that the expert witness only rendered one opinion and that opinion was based upon a hypothetical. In fact, expert witnesses may render numerous opinions during their testimony, one or more of which may be based upon a hypothetical question. This revised instruction now provides that the jurors should simply disregard the response to the hypothetical question, if the party has not proven all of the facts in the hypothetical question. Thus, the failure of the proof of the evidence does not impact the remaining opinions of the witness. Rather, the weighing of that evidence is covered in a separate expert instruction.

EXPERTS INSTRUCTION 3EX.5:

EXPERT WITNESS: PROFESSIONAL NEGLIGENCE

You must determine the standard of professional learning, skill and care required of the defendant only from the opinions of the [accountants, attorneys, etc.], including that of the defendant, who have testified as expert witnesses as to such standard.

You should consider each such opinion and should weigh the qualifications of the witness and the reasons given for [his] [her] opinion. Give each such opinion the weight to which you deem it entitled.

[You must resolve any conflict in the testimony of the witnesses, weighing each of the opinions expressed against the others, taking into consideration the reasons given for the opinion, the facts relied upon by the witness, [his] [her] relative credibility and [his] [her] special knowledge, skill, experience, training and education.]

SOURCE/AUTHORITY

Prabhu v Levine, 112 Nev. 1538, 1546, 930 P.2d 103, (1996).

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