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Univ. of South Carolina School of Law

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Wednesday, June 1, 2011

That's A Legal Problem: Higgs v. State And The Nevada Test For The Admissibility Of Expert Testimony

Last month, I posted an entry about Wisconsin becoming the 31st state to adopt or apply the Daubert standard to determine whether to admit a witness to testify as an expert in a given field. At the time, I promised to do a 19 state tour of the remaining states to shine a light on the varying tests that these states use. Today, I will start our tour in the Battle Born State of Nevada.

Nevada is a good place to start because it likely has the latest elucidation of its expert witness test, as is made clear in Jeffrey Stempel, Expert Witnesses: The Nevada Supreme Court Clarifies Adherence to NRS 50.275 and Judicial Discretion, Expressly Declining to Embrace the Federal Daubert Approach, 18-OCT Nev. Law. Rev. 10 (2010).

So, let's start with the relevant rule, NRS 50.275, which provides that

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.

Next, let's take a look at the Supreme Court of Nevada's opinion in Hallmark v Eldridge, 189 P.3d 646, 650 (Nev. 2008). In Hallmark, the Nevada Supremes noted that 

To date,...this court has not adopted the United States Supreme Court's interpretation of FRE 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc. But, as we have stated, Daubert and the federal court decisions discussing it may provide persuasive authority in determining whether expert testimony should be admitted in Nevada courts.

Next, let's take a look at Higgs v. State, 222 P.3d 648, No. 49883 (Nev. 2010), the Supreme Court of Nevada opinion that prompted the article by Professor Stempel, who teaches at the UNLV William S. Boyd School of Law. In Higgs, Chaz Higgs, the husband of former State Auditor Kathy Augustine, was charged with first-degree murder after he allegedly poisoned her through injection of succinylcholine, a drug to which Higgs had access, through his work as a nurse. During the prosecution, the government proffered expert testimony concerning the nature of the drug and its impact.

After he was convicted, Higgs appealed, claiming that this expert testimony was improperly received. That appeal eventually reached the Supreme Court of Nevada, before which Higgs argued that, in Hallmark, 

Curiously, although the Court did not expressly adopt Daubert, it relied heavily on federal case law - which of course has adopted Daubert - in concluding that the defendant there did not lay the proper foundation through its biomechanical expert in that his opinion based on the record was based on unreliable methodology. Also curiously, while the Court did not expressly adopt Daubert, it noted that the defendant did not offer any evidence that biomechanics was within a recognized field of expertise; that the expert's biomechanical opinion was capable of being tested or that it had been tested; that the defendant's expert's theories had been published or subjected to peer review; and that the defendant's expert's opinion was of the type that had been generally accepted in the scientific community. These, of course, are the hallmarks of a Daubert analysis.

Thus, Higgs became about more than just the case before the court; it become a chance for the Supreme Court of Nevada to explain exactly where it stands with regard to the admission of expert testimony. And, the first thing that the court did was to "expressly reject the notion that our decision in Hallmark inferentially adopted Daubert or signaled an intent by this court to do so." Instead, the court noted that in Hallmark, it

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....This court then identified factors to be considered under each requirement.

Specifically, with regard to qualification, some relevant factors are:

(1) formal schooling and academic degrees, (2) licensure, (3) employment experience, and (4) practical experience and specialized training.

With regard to assistance, the Hallmark court concluded that "[a]n expert's testimony will assist the trier of fact only when it is relevant and the product of reliable methodology" and that

In determining whether an expert's opinion is based upon reliable methodology, a district court should consider whether the opinion is (1) within a recognized field of expertise; (2) testable and has been tested; (3) published and subjected to peer review; (4) generally accepted in the scientific community (not always determinative); and (5) based more on particularized facts rather than assumption, conjecture, or generalization. If the expert formed his or her opinion based upon the results of a technique, experiment, or calculation, then a district court should also consider whether (1) the technique, experiment, or calculation was controlled by known standards; (2) the testing conditions were similar to the conditions at the time of the incident; (3) the technique, experiment, or calculation had a known error rate; and (4) it was developed by the proffered expert for purposes of the present dispute.

Finally, the Hallmark court found that it did not need to identify factors to be considered under the limited scope requirement. And that was part of the point of the court in Higgs. The court in Higgs pointed out that in Hallmark, it was "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."

So, what is the difference between NRS 50.275 and Federal Rule of Evidence 702/Daubert? As noted, NRS 50.275 provides that

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.

Meanwhile, Federal Rule of Evidence 702 provides that

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.

Contrasting these two, the Nevada Supremes concluded that

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."...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.

In Nevada, the qualification, assistance, and limited scope requirements are based on legal principles. The requirements ensure reliability and relevance, while not imposing upon a judge a mandate to determine scientific falsifiability and error rate for each case. In sum, Daubert, as any other case decided by the U.S. Supreme Court, is looked upon favorably by this court. We do not, however, adopt the Daubert standard as a limitation on the factors considered for admissibility of expert witness testimony. We hold that NRS 50.275 provides the standard for admissibility of expert witness testimony in Nevada.

Or, as Professor Stempel put it,

In Higgs, the court reaffirmed the general rules of expert admissibility but took pains to emphasize that scientific precision was not required to make expert testimony admissible as long as the expert was sufficiently qualified and the testimony was helpful to the factfinder and sufficiently reliable. A precise methodology is not required, however, nor must a proffer of expert testimony meet a precise checklist of criteria to gain admissibility. Part of the court's rationale in Higgs was concern that courts, following Daubert, had been overly rigid in applying the criteria for expert admissibility.

-CM

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