Williams v. the Eighth Judicial Dist. Court of State
| Decision Date | 28 July 2011 |
| Docket Number | 57079.,Nos. 56928,s. 56928 |
| Citation | 127 Nev. Adv. Op. 45,262 P.3d 360 |
| Parties | James M. WILLIAMS and Heidi Williams, Husband and Wife; and Joanne Allen and Kenneth G. Allen, Husband and Wife, Petitioners,v.The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK; and The Honorable Kathleen E. Delaney, Respondents,andBaxter Healthcare Corporation; Sicor, Inc.; Teva Parenteral Medicines, Inc., f/k/a Sicor Pharmaceuticals, Inc.; and McKesson Medical–Surgical, Inc., Real Parties in Interest.Sicor, Inc.; Teva Parenteral Medicines, Inc. (f/k/a Sicor Pharmaceuticals, Inc.); McKesson Medical–Surgical, Inc.; and Baxter Healthcare Corporation, Petitioners,v.The Eighth Judicial District Court of the State of Nevada, in and for the County of Clark; and The Honorable Timothy C. Williams, District Judge, Respondents,andMaria V. Pagan, individually; and William I. Bilger, Jr., and Marilyn Elaine Bilger, husband and wife, Real Parties in Interest. |
| Court | Nevada Supreme Court |
OPINION TEXT STARTS HERE
Mainor Eglet and Robert T. Eglet, Las Vegas; Kemp Jones & Coulthard LLP and Will Kemp, Las Vegas, for James M. Williams; Heidi Williams; Joanne Allen; Kenneth G. Allen; Maria V. Pagan; William I. Bilger, Jr.; and Marilyn Elaine Bilger.Lewis & Roca LLP and Daniel F. Polsenberg, Las Vegas; Olson, Cannon, Gormley & Desruisseaux and James R. Olson, Michael E. Stoberski, and Max E. Corrick II, Las Vegas; Alan M. Dershowitz, Cambridge, MA, for Baxter Healthcare Corporation; McKesson Medical–Surgical, Inc.; Sicor, Inc.; and Teva Parenteral Medicines, Inc.Before the Court En Banc.1
These consolidated writ petitions raise two novel issues involving the admissibility of expert testimony: (1) whether a nurse can testify as an expert regarding medical causation, and (2) whether defense expert testimony offering alternative causation theories must meet the “reasonable degree of medical probability” standard set forth in Morsicato v. Sav–On Drug Stores, Inc., 121 Nev. 153, 155, 111 P.3d 1112, 1114 (2005). We conclude that a nurse can testify regarding matters within his or her specialized area of practice, but not as to medical causation unless he or she has obtained the requisite knowledge, skill, experience, or training to identify cause. We further take this opportunity to clarify the standard for defense expert testimony regarding medical causation and conclude that the standard differs depending on how the defendant utilizes the expert's testimony. When a defense expert traverses the causation theory offered by the plaintiff and purports to establish an independent causation theory, the testimony must be stated to a reasonable degree of medical probability pursuant to Morsicato. However, when a defense expert's testimony of alternative causation theories controverts an element of the plaintiff's prima facie case where the plaintiff bears the burden of proof, the testimony need not be stated to a reasonable degree of medical probability, but it must be relevant and supported by competent medical research.
Here, in Docket No. 56928, we conclude that the district court abused its discretion when it allowed an unqualified nurse to offer expert testimony regarding medical causation; however, it did not abuse its discretion when it determined that one of the defense's other expert witnesses could offer testimony regarding alternative causation theories. In Docket No. 57079, we conclude that the district court abused its discretion when it precluded the same nurse from offering any expert testimony because a nurse can testify within his or her area of expertise but not as to causation, unless he or she possesses the requisite knowledge, skill, experience, or training to identify cause.2 Therefore, writ relief is granted in part and denied in part.
These writ petitions arise out of two separate actions resulting from an outbreak of hepatitis C at the Endoscopy Clinic of Southern Nevada (ECSN) in Las Vegas. The defendants in the district court are companies involved in the pharmaceutical industry that are being sued by former patients who were allegedly infected with hepatitis C while having procedures performed at ECSN and their spouses.
In each case below, the plaintiffs are suing the defendants for strict products liability, including design defect, failure to warn, and breach of implied warranty of fitness for a particular purpose. The plaintiffs 3 theorize that defective vials of the anesthetic Propofol caused them to contract hepatitis C. They claim that defendants Baxter Healthcare Corporation; Sicor, Inc.; Teva Parenteral Medicines, Inc., f.k.a. Sicor Pharmaceuticals, Inc.; and McKesson Medical–Surgical, Inc. (collectively, Sicor), are liable for their distribution of 50mL vials of Propofol to endoscopy clinics because that size vial lends itself to reuse and contamination. More specifically, the plaintiffs allege that medical personnel at ECSN injected needles contaminated with hepatitis into vials of Propofol. The medical personnel then allegedly reused those vials and injected the plaintiffs with the now-contaminated Propofol.
To rebut these claims, Sicor obtained opinions from several experts, including the two who are at issue in this appeal: David Hambrick, a registered nurse, and Jonathan Cohen, M.D., a professor of medicine. In both cases, these experts opined that improper cleaning and disinfection techniques at the clinic may have caused the plaintiffs to contract hepatitis C, but they could not identify a specific piece of equipment that transmitted the virus. The Williams Petitioners refer to this theory as the “dirty scopes” theory. Based on those opinions, the plaintiffs in each case filed motions in limine to exclude Nurse Hambrick's and Dr. Cohen's testimony. However, the district courts hearing these two cases came to different conclusions concerning Nurse Hambrick.
The Williams Petitioners filed two motions in limine to exclude expert testimony. In the first motion, the Williams Petitioners asked the district court to preclude Sicor from offering testimony that “dirty scopes” caused their hepatitis C because Dr. Cohen and Nurse Hambrick “did not have an opinion to a reasonable degree of medical probability that a ‘dirty scope’ was the cause of hepatitis....” In the second motion, the Williams Petitioners similarly asked the district court to preclude the defendants from offering testimony regarding a “dirty scope” alternative theory of causation, and they also argued that nurses cannot give testimony regarding causation. At the hearing on the motions, the Williams Petitioners again argued that Nurse Hambrick could not qualify as an expert.
The district court denied both motions for two reasons. First, the court noted that “NRS 632.019 does not preclude a nurse from providing expert testimony.” 4 The district court cited Staccato v. Valley Hospital, 123 Nev. 526, 531–32 n. 13, 170 P.3d 503, 506 n. 13 (2007), for the proposition that assessing a nurse as an expert requires an evaluation of his or her skill and knowledge and that this court has determined that nurses can testify against doctors. The district court further found that Nurse Hambrick was well-qualified and met the standard set forth in Morsicato, 121 Nev. 153, 111 P.3d 1112, for expert testimony. The district court next determined that Sicor would “be able to offer competent evidence and expert testimony regarding [its breach of infection control practices] theory of medical causation.”
The Pagan Parties filed a similar motion in limine to exclude testimony regarding a “dirty scope” theory. Unlike in the Williams Petitioners' case, the district court granted the Pagan Parties' motion to exclude Nurse Hambrick from offering his opinion that unsafe cleaning practices caused the plaintiffs to contract hepatitis C. The district court found that Nurse Hambrick's opinion was related to a specific alternative causation theory and, therefore, had to meet the reasonable degree of medical probability standard announced in Morsicato. Applying this standard, the district court determined that, based on Nurse Hambrick's deposition testimony, he could not testify to greater than a 10–percent probability that the cleaning processes used caused the plaintiffs' hepatitis, and Morsicato requires greater than 50 percent. The district court also found that, pursuant to Morsicato, an “expert can not simultaneously testify as to 2 different medical causation opinions,” and, here, Nurse Hambrick could not identify a specific piece of equipment as the cause of the plaintiffs' hepatitis C.
After the district courts entered their respective orders regarding Sicor's expert witnesses, the aggrieved parties (the Williams Petitioners in their case and Sicor in the Pagan Parties' matter) petitioned this court for extraordinary writ relief. On October 14 and November 4, 2010, this court granted temporary stay orders in the underlying matters pending the resolution of the writ petitions. The November 4 order also consolidated these two original writ proceedings.
When a writ of mandamus is appropriate
“A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station or to control an arbitrary or capricious exercise of discretion.” International Game Tech. v. Dist. Ct., 124 Nev. 193, 197, 179 P.3d 556, 558 (2008) (footnote omitted); NRS 34.160. This court has held that the decision to admit or exclude expert opinion testimony is discretionary and is not typically subject to review on a petition for a writ of mandamus. Walton v. District Court, 94 Nev. 690, 693, 586 P.2d 309, 311 (1978). Mandamus is also not available when the “petitioner has a plain, speedy, and adequate remedy in the ordinary course of law,” Mineral County v. State, Dep't of Conserv., 117 Nev. 235, 243, 20 P.3d 800, 805 (2001), and the opportunity to...
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