Strategies, Challenges, and Answers

Paper Experts

When Nevada courts decide whether an expert witness will be allowed to testify, they do not look to the rules set by the U.S. Supreme Court in Daubert v. Merrell Dow Pharm., Inc, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).  See, Dow Chem. Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98 (1998).  Instead, the Nevada Supreme Court is developing its own set of rules to determine whether an expert can give opinion testimony to the jury.

Daubert v. Merrell Dow Pharm., Nevada Coverage Law, Mills & Associates Nevada Insurance and Coverage Lawyers 702-240-6060As we said in our post a few years back, HERE, the case of Hallmark v. Eldridge, 124 Nev. 492, 189 P.3d 646 (2008) offered several factors that the trial courts should consider in deciding whether an expert can testify.  The Nevada Supreme Court said that its trial judges should consider the proposed expert’s:
(1) formal schooling and academic degrees;
(2) licensure status;
(3) employment experience; and,
(4) practical experience and specialized training.

However, before the Hallmark decision came down, the Nevada Supreme Court had specifically said that an expert witness need not be licensed in a given field to qualify as an expert witness.  Staccato v. Valley Hosp., 123 Nev. 530, 170 P.3d 503, 505 (2007).  We blogged about the Staccato case HERE. So after Hallmark, Nevada trial court’s were left with the question of whether Hallmark’s reference to licensure had trumped Staccato’s statement that licensure wasn’t absolutely necessary.

In the recent case of Williams v. Eighth Judicial Court, 127 Nev.Adv.Op. 45, 262 P.3d 360 (2011), the Nevada Supreme Court answered the question of where licensure fell on the scale of importance in making an analysis of an expert’s qualifications.  In Williams, a party had offered a nurse as its proposed expert, hoping that she could give expert opinion testimony as to why a patient had become sick.  The opponent of the expert argued that because the nurse was not a licensed physician, she could never qualify as an expert in the cause and effect analysis needed to reach a diagnosis because she lacked a license.

Like in Stacatto, the Williams court decided that the lack of licensing wasn’t critical.  Instead, they said that the expert’s experience should carry the day as to whether that that expert would be allowed to render the proffered opinion.

At first blush, it may appear that the Court had just opened the door to allowing any person to be considered an expert in any field.  But in reality, the Court had simply placed practical experience and specialized training well above academics and technical licensing issues on the hierarchy of factors to consider in deciding the qualifications of an expert.

Applying that standard to this proffered nurse expert, the Williams court found that while the nurse was qualified to testify as to techniques of sterilization and equipment handling, she was not qualified to render a diagnosis because she had never actually diagnosed a patient who had become infected from improperly disinfected equipment.  Therefore, the nurse could not testify that the improperly disinfected equipment caused the patient’s illness.  The case suggests that had the nurse had more practical experience in diagnosing patients exposed to infected equipment that she would have been fully qualified to render an opinion against a doctor.

The lesson learned is that while it is often easy to be impressed by “paper experts” with licensing, miles of credentials and extensive publications, the real standard is whether the “paper expert” can demonstrate actual hands on practical knowledge, skill, and expertise in the specific area at issue.   It’s the degree of knowledge, not just the degree that makes an expert.

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