Expert Testimony, Hallmark v. Eldridge Revisited
In Higgs v. State, 126 Nev. Adv. Op. 1 (2010), the Nevada Supreme Court revisited the issue of admissibility of expert testimony and clarified an inconsistency (real or perceived) in its prior ruling on the topic: Hallmark v. Eldridge, 189 P.3d 646 (Nev. 2008).
A couple of things are clear after Higgs:
1. Nevada only looks to Daubert and its factors for guidance, not strict adherence; and
2. And I quote, “NRS 50.275 provides general guidance and allows the trial judge discretion in deciding what factors are to be considered on a case-by-case basis.”
In Higgs, the court explained,
[I]n Hallmark, we stated that Daubert and federal court decisions discussing it “may provide persuasive authority.” Hallmark, 124 Nev. at ___, 189 P.3d at 650. We did not, however, and do not today, adopt the Daubert standard as a limitation on the factors that a trial judge in Nevada may consider. We expressly reject the notion that our decision in Hallmark inferentially adopted Daubert or signaled an intent by this court to do so.
A close reading of Hallmark is helpful. This court concluded that the district court abused its discretion in allowing the expert testimony of a biochemical engineer. 124 Nev. at ___, 189 P.3d at 652. In so doing, we summarized Nevada’s jurisprudence regarding expert witness testimony pursuant to NRS 50.275. 124 Nev. at ___, 189 P.3d at 650-52. We identified the three overarching requirements for admissibility of expert witness testimony pursuant to NRS 50.275 as (1) qualification, (2) assistance, and (3) limited scope requirements. 124 Nev. at ___, 189 P.3d at 650. This court then identified factors to be considered under each requirement. 124 Nev. at ___, 189 P.3d at 650-52. We were careful to note that the list of factors was not exhaustive, and we recognized that every factor may not be applicable in every case and would likely be accorded varying weight from case to case. Id. at ___, 189 P.3d at 651-52. It is worth noting that we supported our conclusion by citing to Nevada cases, not federal.
Consider the differences between NRS 50.275 and FRE 702. NRS 50.275 states:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge.
FRE 702 contains similar language, but with additional conditions, which were added in response to the Daubert trilogy (Daubert, Joiner, and Kumho):
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Whereas the federal rule mandates three additional conditions that trial judges should consider in evaluating expert witness testimony, the Nevada statute mandates no such requirements. Rather, NRS 50.275 provides general guidance and allows the trial judge discretion in deciding what factors are to be considered on a case-by-case basis. In Hallmark, we outlined some factors that are useful in this inquiry, but repeatedly noted that the factors enumerated “may not be equally applicable in every case.” 124 Nev. at ___, 189 P.3d at 651, 652. We determine that the benefit of our approach is twofold: first, it gives judges wide discretion to perform their gatekeeping duties; and, second, it creates an inquiry that is based more in legal, rather than scientific, principles.
