Hallmark v. Eldridge

• Decision Date: 24 July 2008
• Docket Number: No. 46722.,46722.
• Citation: 189 P.3d 646
• Parties: Debra HALLMARK, as Personal Representative for Carrie Hallmark, Deceased, Appellant, v. Adam ELDRIDGE, an Individual; Tradewinds Construction, Inc., a Nevada Corporation; and Tradewinds Building and Development, Inc., a Nevada Corporation, Respondents.
• Court: Nevada Supreme Court

189 P.3d 646

Debra HALLMARK, as Personal Representative for Carrie Hallmark, Deceased, Appellant, v. Adam ELDRIDGE, an Individual; Tradewinds Construction, Inc., a Nevada Corporation; and Tradewinds Building and Development, Inc., a Nevada Corporation, Respondents.

No. 46722.

Supreme Court of Nevada.

July 24, 2008.

Shreve & Associates and Don F. Shreve, Jr., Las Vegas; Caruso Law Offices and Stephen M. Caruso, Las Vegas, for Appellant.

Bennion Clayson & Marias and S. Don Bennion, Jr., and Janet C. Pancoast, Las Vegas, for Respondents.

Before the Court En Banc.¹

OPINION

By the Court, MAUPIN, J.

In this appeal, we consider the extent to which biomechanical engineers may testify concerning damage claims in personal injury matters² and clarify the standards for appellate review concerning the adequacy of damage awards based upon the erroneous admission of evidence.

We conclude that (1) the district court below abused its discretion when it allowed a physician with an engineering background to testify as a biomechanical expert against a personal injury plaintiff because, among other reasons, the testimony did not assist the jury in understanding the evidence as the testimony was not based on a reliable methodology; (2) prejudice stemming from errors in the admission of evidence bearing upon a damage claim requires reversal when the error substantially affects the rights of the complaining party on appeal; and (3) such an error substantially affects those rights when the appellant establishes, based upon a sufficient appellate record, the reasonable probability of a different result in the absence of the error. We further conclude that the record on appeal sufficiently demonstrates that, but for the error, appellant Carrie Hallmark,³ plaintiff in the action below, would probably have obtained a more favorable damage award in the matter below. Accordingly, we reverse and remand the case to the district court with instructions that it grant Hallmark a new trial limited to the issue of her damages without the contested evidence.

FACTUAL BACKGROUND

On April 4, 2002, during the course and scope of his employment with respondents Tradewinds Construction, Inc., and Tradewinds Building and Development Company, respondent Adam Eldridge (collectively Tradewinds) backed a company truck into the driver's side of Carrie Hallmark's vehicle. At the time of impact, Hallmark was sitting in the driver's seat and wearing a safety belt. The impact rocked one side of Hallmark's vehicle approximately three feet off the ground. As a result of the collision, one of the tires on Hallmark's vehicle exploded, and the left side panel of Hallmark's car was gouged and scratched. Responding paramedics, however, did not transport Hallmark to the hospital for medical care.

Approximately two months after the accident, doctors diagnosed Hallmark with a contusion and strain in her left hip. Doctors later examined Hallmark's spine and sought magnetic resonance imaging (MRI) studies, which showed a decrease in height and hydration of the discs in the lumbar region of her spine. Thereafter, a spine specialist examined her and concluded that she had a lumbar strain with radiculopathy. Doctors later concluded that two ruptured lumbar disc herniations had developed.

In the suit to recover damages for Hallmark's personal injuries, the parties conducted discovery and identified their respective experts. Hallmark's treating physicians opined that the accident had caused her lower back disc injuries.

To refute that contention at trial, Tradewinds presented its own expert testimony. Specifically, over Hallmark's objection, the district court allowed a physician, Alfred Bowles II, M.D., who was credentialed as a "biomechanical engineer," to testify that the forces involved in the collision could not have caused Hallmark's alleged back injuries. Tradewinds' other medical expert, Robert Fink, M.D., a neurosurgeon, concluded that Hallmark's preexisting diabetic neuropathy caused her lower back pain. Dr. Fink based his opinion on his physical examination of Hallmark and his review of her medical records. Dr. Fink gave no opinion as to whether the forces involved in the automobile collision could have caused her lower back injuries.

The jury found Tradewinds 100 percent at fault for the accident and awarded Hallmark $200,000 for past damages and $20,000 for future damages. Hallmark moved for additur or, in the alternative, a new trial limited to the issue of damages, contending that the jury award was clearly insufficient because it barely covered her special damages, and Tradewinds was 100 percent at fault. The district court denied Hallmark's motion. This appeal followed.

DISCUSSION

On appeal, Hallmark contends that the district court erred in allowing Tradewinds' biomechanical expert, Dr. Bowles, to testify that the forces involved in the accident could not have caused Hallmark's herniated disc and lumbar spinal injuries. Hallmark further contends that the district court abused its discretion when it denied her motion for additur or, in the alternative, a new trial limited to the issue of damages. We will discuss these contentions in turn.

Tradewinds' biomechanical expert

Hallmark argues that the district court abused its discretion under NRS 50.275, the Nevada statute concerning the admission of expert testimony, when it allowed Dr. Bowles to testify because his biomechanical opinion was not based upon an adequate factual and scientific foundation. We agree.

Tradewinds designated Dr. Bowles as a biomechanical expert to testify about the physical forces involved in the collision and whether they could have caused Hallmark's alleged spinal injuries. His testimony was intended to refute the extent of Hallmark's claimed damages.

Before trial, Hallmark moved to prevent Dr. Bowles from reconstructing the accident, rendering a biomechanical opinion, and testifying about the reasonableness of Hallmark's medical treatment. Tradewinds opposed the motion, relying largely upon Dr. Bowles' professional training and experience.

Dr. Bowles received his medical degree from the Indiana University School of Medicine and a bachelor's degree in mechanical engineering from Purdue University. With respect to his professional work experience, he was employed as (1) a consultant for the Biodynamic Research Corporation in San Antonio, Texas; (2) a flight surgeon in the United States Air Force Reserve; and (3) a practicing physician in emergency and general medicine for Southwest Medical Associates in Rockport, Texas. Additionally, Dr. Bowles is board certified in general surgery, licensed to practice medicine in Texas and Kansas, and has lectured over 20 times and published four articles about "whiplash injuries," airbags, low-velocity collisions, and other biomechanical topics. In the ten years before the trial of this matter, Dr. Bowles had testified approximately 62 times as a biomechanical expert. The record is unclear, however, as to the nature of the injuries involved in those matters and the conclusions reached.

The district court prohibited Dr. Bowles from testifying about accident reconstruction and the reasonableness of Hallmark's medical treatment but, over Hallmark's renewed objection at trial, concluded that Tradewinds presented an adequate foundation for him to testify as a biomechanical expert. Dr. Bowles testified that the forces involved in the collision could not have caused the herniation in Hallmark's lumbar spine. Instead, Dr. Bowles indicated that Hallmark's preexisting diabetes milletus caused degenerative changes in her back. According to Dr. Bowles, his opinion was founded upon his examination of Tradewinds' truck, Hallmark's complaint and Tradewinds' answer, the depositions of Hallmark and Eldridge, Hallmark's medical records, and photographs of Hallmark's vehicle. Dr. Bowles, however, conceded that he formed his opinion without knowing the starting positions of the vehicles, the speeds at impact, the length of time that the vehicles were in contact during impact, the distances traveled, or the angle at which the vehicles collided. Dr. Bowles also conceded that his opinion relied on photographs of Hallmark's vehicle because he did not physically examine it.

The relationship between NRS 50.275 and Federal Rule of Evidence 702

The statute governing the admissibility of expert testimony in Nevada district courts is NRS 50.275,⁴ which, as we have construed it,⁵ tracks Federal Rule of Evidence (FRE) 702.⁶ To date, however, this court has not adopted the United States Supreme Court's interpretation of FRE 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc.⁷ 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.⁸

The admissibility of expert testimony under NRS 50.275

This court reviews a district court's decision to allow expert testimony for abuse of discretion.⁹ To testify as an expert witness under NRS 50.275, the witness must satisfy the following three requirements: (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 her testimony must be limited "to matters within the scope of [his or her specialized] knowledge" (the limited scope requirement).

The qualification requirement of NRS 50.275

As noted, before a person may testify as an expert under NRS 50.275, the district court must first determine whether he or she is qualified in an area of scientific, technical, or other specialized knowledge.¹⁰ In determining whether a person is properly qualified, a district court should consider the following factors: (1) formal schooling and academic degrees,¹¹ (2)...