Biomechanical experts have been the subject of many motions in limine and appeals throughout recent years. The primary issue has been whether a biomechanical expert can provide opinions at trial regarding the forces of impact and alleged injuries resulting from that impact. In 2008, the Nevada Supreme Court laid the groundwork and set a high bar for a party to successfully present biomechanical expert testimony. Notably, the Court also confirmed that Nevada does not follow the federal Daubert standard regarding admission of expert testimony and the Daubert and other federal decisions instead provide persuasive authority.
In Hallmark v. Eldridge, defendant designated Dr. Bowles, an established medical doctor, and mechanical engineer as a biomechanical expert and sought to have him testify that the physical forces involved in the collision were insufficient to cause the spine injuries alleged by plaintiff resulting in nearly $200,000 in incurred medical bills. Hallmark, 124 Nev. 492 (2008). Dr. Bowles’ opinions were based on his review of the complaint, answer, inspection of defendant’s truck, the depositions of the parties, plaintiff’s medical records and photographs of the plaintiff’s vehicle. At trial, Dr. Bowles testified that the forces involved “could not have caused the herniation in Hallmark’s lumbar spine” and instead related the herniation to Hallmark’s preexisting diabetes causing degenerative changes.
The Court, in determining whether Dr. Bowles’ testimony was properly admitted, analyzed Nevada’s statute concerning admission of expert testimony, NRS §50.275. Under that statute, an expert must satisfy the following:
(1) he or she must be qualified in an area of “scientific, technical or other specialized knowledge” (the qualification requirement); (2) his or her specialized knowledge must “assist the trier of fact to understand the evidence or to determine a fact in issue” (the assistance requirement); and (3) his or testimony must be limited “to matters within the scope of [his or her specialized] knowledge” (the limited scope requirement).
The Court found that Dr. Bowles clearly met the qualification requirement based on his CV and prior publications. However, his proffered testimony did not meet the assistance requirement. The Court analyzed and discussed several persuasive federal district and appellate cases in finding that Dr. Bowles testimony did not assist the jury because it was “not the product of reliable methodology.” The Court emphasized that Dr. Bowles had not conducted accident reconstruction testing, did not offer evidence that biomechanics was within a “recognized field of expertise” and did not offer any evidence that his opinions were published and generally accepted in the scientific community. Further, the Court noted that he did not inspect the plaintiff’s vehicle nor did he have any information regarding the vehicles’ starting positions, speeds at impact, length of time the vehicles were in contact or the angle at which the vehicles collided. Finally, although Dr. Bowles is a medical doctor and surgeon, the Court noted that he had not physically examined the plaintiff and therefore should not have been allowed to opine that the plaintiff’s injuries were preexisting.
Importantly, the Court notes that proper foundation could have been laid such that Dr. Bowles’ testimony would have been helpful to the jury and therefore properly admitted. However, the Court noted proper foundation would have required at least some, if not all of the following:
- Obtaining and relying on all relevant information relative to the collision including speeds, starting points, length of impact, etc.;
- The opportunity to inspect the plaintiff’s vehicle;
- Generally accepted articles and studies in peer-reviewed publications that support the expert’s opinion; and
- If the expert intends to opine that preexisting issues caused the injuries, an NRCP 35 examination will need to be conducted by the biomechanical expert.
Such a high bar may be difficult to meet for most cases. Further, in low-impact cases that have less than six figures in medical specials, it may not be financially feasible or economical to retain a biomechanical expert to dispute causation.
The Hallmark case confirms that biomechanical experts are admissible in Nevada; however, the bar for admissibility remains high, particularly if you wish to have your expert opine on a plaintiff’s injuries from the collision forces. Ensuring that all necessary information is gathered during the pre-litigation phase is critical. For example, ensuring that your expert will have the opportunity to inspect the plaintiff’s vehicle will help to ensure proper foundation is laid for your expert’s opinion. This is, however, a difficult task in most cases involving minor or even moderate damage. Further, an NRCP 35 examination with your biomechanical expert may not be financially feasible and/or may be redundant if you also have a medical expert that will need to conduct an examination for his opinions. As always, the decision as to whether to retain a biomechanical expert should be made on a case by case basis depending on the facts, injuries, treatment and medical bills alleged.