OPINION
In this appeal, we consider the extent to which biomechanical engineers may testify concerning damage claims in personal injury matters 2 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 die 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 imag ing (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
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 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) licensure,
12
(3) employment
We conclude that the district court did not abuse its discretion when it determined that Dr. Bowles qualified as an expert under NRS 50.275 because substantial evidence supports its findings. The formal schooling and academic degrees factor is supported because Dr. Bowles holds a bachelors of science degree in mechanical engineering and a doctorate of medicine. The licensure factor is supported because Dr. Bowles is licensed to practice medicine in Texas and Kansas. Dr. Bowles’ approximately ten years of surgical experience and his residency in general surgery support the employment and specialized training factors.
Thus, we next examine whether Dr. Bowles’ biomechanical testimony satisfied the “assistance” requirement of NRS 50.275.
The assistance requirement of NRS 50.275
If a person is qualified to testify as an expert under NRS 50.275, the district court must then determine whether his or her expected testimony will assist the trier of fact in understanding the evidence or determining a fact in issue. An expert’s testimony will assist the trier of fact only when it is relevant
15
and the product of reliable methodology.
16
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;
17
(2) testable and has been tested;
18
(3) published and subjected to peer review;
19
(4) generally accepted
After reviewing the above factors, we conclude that the district court abused its discretion when it allowed Dr. Bowles to testify because his biomechanical testimony and report did not assist the jury in understanding the evidence or in determining a fact in issue. Tradewinds did not offer any evidence that biomechanics was within a recognized field of expertise. Moreover, Tradewinds did not introduce any evidence demonstrating that Dr. Bowles’ bio-mechanical opinion was capable of being tested or that it had been tested. Additionally, Tradewinds did not present any evidence that Dr. Bowles’ theories had been published or subjected to peer review. While Dr. Bowles had published a variety of articles on bio-mechanical topics, Tradewinds did not introduce any evidence that those articles were relevant to determining Hallmark’s specific injuries. Tradewinds also did not offer any evidence showing that these types of opinions were generally accepted in the scientific community. Further, his opinion was highly speculative because he conceded that he formed it without knowing (1) the vehicles’ starting positions, (2) their speeds at impact, (3) the length of time that the vehicles were in contact during impact, or
Additionally, Tradewinds did not introduce any evidence that Dr. Bowles attempted to re-create the collision by performing an experiment, so we cannot address whether his opinion was the product of reliable methodology. Nor was any evidence proffered showing that Dr. Bowles’ opinion was formed and controlled by known standards or had a known error rate. Instead, Dr. Bowles simply affirmed that his opinions were supported by “a reasonable degree of medical and biomechanical certainty.” In short, Tradewinds offered insufficient foundation for this court to take judicial notice of the scientific basis of Dr. Bowles’ conclusions. 27
Federal caselaw
Federal district
28
and appellate
29
caselaw supports our conclusion that the district court should have excluded Dr. Bowles’ biomechanical testimony, which concluded that the forces involved in the accident could not have caused Hallmark’s alleged lower back injury, because Tradewinds did not demonstrate that his opinion was the product of reliable methodology. In
O’Neill v. Windshire-Copeland Associates,
the United States Court of Appeals for the Fourth Circuit concluded that the district court did not abuse its discretion in excluding the proposed testimony of a professor of biomechanics because his “opinion appealed] to be based more on supposition than science.”
30
Likewise here, Dr. Bowles’ opinion was based more on supposition than science because he did not inspect Hallmark’s vehicle, he could not identify an area or angle of impact, and he did not know the speed of the vehicles at the time of the collision. In
Clark v. Takata Corp.,
the United States Court of Appeals for the Seventh Circuit concluded that the district court had not abused its discretion when it excluded a biomechanical expert’s testimony regarding the cause of the plaintiff’s injuries because the expert’s opinion was not supported by any tests, data, or research.
31
Similarly here, Dr. Bowles’ conclusion that the collision did not cause Hallmark’s injuries was not supported by any tests or specific research. Finally, in
Smelser
v.
Norfolk Southern Railway
Co., the United States
While we note that Tradewinds could potentially lay a foundation for Dr. Bowles’ testimony, Tradewinds did not establish a sufficient foundation in this case. For instance, Tradewinds did not attempt to elicit Dr. Bowles’ opinion concerning whether Hallmark’s alleged injuries were inconsistent to a reasonable degree of medical certainty with her past medical history. Dr. Bowles did not even physically examine Hallmark. In short, Tradewinds improperly attempted to infer a theory of medical causation using engineering principles that lacked a demonstrable methodology and reliable foundation.
The district court allowed Dr. Bowles to testify that (1) the forces involved in the collision could not have caused the intervertebral disc herniation in Hallmark’s lumbar spine and (2) Hallmark’s preexisting diabetes caused degenerative changes in her back. The first theory fails for want of an adequate foundation based upon the principles stated above. While Tradewinds could conceivably lay a foundation based upon medical science for the second theory of causation, it was improperly allowed in this case to the extent that it was based upon scientifically unsupported or accepted notions of “biomechanical engineering.” We therefore conclude that the district court abused its discretion when it allowed Dr. Bowles’ testimony because his testimony did not satisfy the “assistance” requirement of NRS 50.275. 33
The standard of review concerning the erroneous admission of evidence
Having concluded that the district court abused its discretion in the admission of Dr. Bowles’ testimony, we must now determine whether the error compels reversal. While Hallmark separately seeks relief from the judgment based upon an argument that the damages were “clearly inadequate,” a standard that we utilize to review an attack upon a damage award based solely upon its sufficiency, errors in the admission of evidence are governed by a less restrictive standard of review. We review claims of prejudice concerning errors in the admission of evidence based upon whether the error substantially affected the rights of the appellant. 34 This demonstration is made when the appellant demonstrates from the record that, but for the error, a different result “might reasonably have been expected.” 35
The motion for additur or a new trial on the issue of damages
Hallmark argues 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, because the $220,000 award was clearly inadequate given the extent of her spinal injuries. Because we have determined that the error in the admission of evidence compels reversal for a new trial on damages only, we have determined not to reach Hallmark’s separate contention that the damage award, standing alone, was clearly inadequate. 38
CONCLUSION
We conclude that the district court abused its discretion when it allowed Tradewinds’ biomechanical expert to testify because Tradewinds did not demonstrate that this testimony was based on a reliable methodology and, thus, this testimony did not assist the jury in understanding the source of Hallmark’s injury. We further conclude that the erroneous admission of this testimony required reversal because the record confirms that, absent the error, she probably would have received a larger damage award.
Accordingly, we reverse the district court’s judgment as to the damage award and remand the case to the district court for a new trial limited to the issue of Hallmark’s damages. The claim on appeal concerning the district court’s order denying Hallmark’s motion for additur or a new trial is therefore moot. We instruct the district court on remand that Dr. Bowles’ evidence be excluded from consideration by the jury at the new trial proceedings. We affirm the district court’s judgment in all other respects.
Notes
“Biomechanics is the application of engineering principles and methods to the study and solution of problems arising in biology and medicine.” 46 Am. Jur. Trials 638-39 (1993). Biomechanical engineers study and evaluate the effect of physical forces on the human body. Id. at 639.
Carrie Hallmark died after the notice of appeal was filed in this matter. On March 3, 2008, we entered an order substituting Debra Hallmark, Carrie Hallmark’s personal representative, as appellant. Nevertheless, for the purposes of this opinion, we refer to Carrie Hallmark as the appellant.
NRS 50.275 states that “[i]f 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.”
See, e.g., Dow Chemical Co. v. Mahlum,
FRE 702 states:
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.
See Dow Chemical Co.,
Brown v. Capanna,
See Fernandez,
See, e.g., Yamaha Motor Co.,
See, e.g., Dow Chemical Co.,
See Yamaha Motor Co.,
Cheyenne Construction,
NRS 48.015; NRS 48.025.
See Warden v. Lischko,
See Porter
v.
State,
See, e.g., Santillanes
v.
State,
See Dow Chemical Co.,
See, e.g., State, Emp. Sec. Dep’t v. Holmes,
Porter,
See Cabrera,
See, e.g., Wrenn v. State,
See, e.g., Santillanes v. State,
Cabrera,
Finally, we question the relevancy of the pleadings in this case to an expert’s conclusions.
This court has not yet judicially noticed the general reliability of biomechanical engineering or its ability to assess the cause of personal injuries in automobile accidents, nor has Tradewinds cited to any other jurisdictions that do so. On the other hand, scientific techniques like accident reconstruction,
see, e.g., Fowler v. Bauman,
See, e.g., Shaffer v. Amada America, Inc.,
E.g., O’Neill v. Windshire-Copeland Associates,
In light of this conclusion, we do not need to reach the question of whether his testimony satisfied the “limited scope” requirement of NRS 50.275. We also conclude that Dr. Bowles’ experience in giving professional lecture programs, the prior admissions of his testimony in other unknown contexts, and his limited publications were not sufficient on this record to justify admission of the proffered opinions.
See Beattie
v.
Thomas, 99
Nev. 579, 586,
See Beattie, 99
Nev. at 586,
We note that because we are looking at the district court’s action in admitting evidence to the jury, this standard does not intrude on the jury’s role to weigh the evidence.
Under NRS 41.141, which governs when comparative negligence bars recovery in a personal injury action, no reduction in the damage award would be assessed in the district court because Hallmark was not in any respect culpable with regard to the incident in question.
Interestingly, Hallmark has not in any respect argued the prejudicial effect of Dr. Bowles’ testimony. Rather, she makes a separate discrete argument, discussed below, that the district court should have granted additur because the ultimate award was “clearly inadequate.”
See Arnold
v.
Mt. Wheeler Power,