IN THE SUPREME COURT OF THE STATE OF NEVADA
SANJEEV MANHAS, AN INDIVIDUAL, No. 80439
Appellant,
VS. FILED
DAVID D. TINKER, AN INDIVIDUAL,
Respondent. JUN I 2021
A. BROWN
CLE
ORDER OF AFFIRMANCE SY
miry CLERK
This is an appeal from a judgment on a jury verdict in a short
trial. Eighth Judicial District Court, Clark County; Timothy C. Williams,
Judge.1
Having considered the parties arguments and the record, we
conclude that the short trial judge was within his discretion to grant
respondent's untimely motion for a jury trial. See Walton v. Eighth Judicial
Dist. Court, 94 Nev. 690, 695,
586 P.2d 309, 312 (1978) (recognizing that
trial courts have discretion under NRCP 39(b) to grant an untimely motion
for a jury trial). In granting respondent's motion, the short trial judge relied
on De Remer v. Anderson, which opined that it is the "better policy . . . if no
material injury or delay were cause& by the untimely motion to grant such
a motion.
41 Nev. 287, 303,
169 P. 737, 742 (1918). The short trial judge
also relied on Walton, which reaffirmed De Remer and suggested that a trial
court would be within its discretion to grant an untimely motion if "no delay
or confusion would have resulted for the court [n]or would any surprise or
prejudice have resulted to the [non-moving party]."
94 Nev. at 695,
586 P.2d
at 312.
In his order granting respondent's motion, the short trial judge
expressly found that a jury trial could be held on the same date scheduled
!Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
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for the bench trial, such that no delay would result. The short trial judge
also found that appellant did not demonstrate any "confusion or surprise."
Appellant does not dispute these findings on appeal, but instead argues that
"[i]mplicit in [NRCP 39(b)'s] grant of discretion is that there must be some
good reason or good cause stated in the motion for jury trial to justify
granting a jury trial." Given that appellant has not provided any authority
in support of his proposition, we are not persuaded that this argument
warrants reversal. Cf. Edwards v. Emperor's Garden Rest., 122 Nev. 317,
330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (observing that it is a party's
responsibility to provide salient authority in support of an argument).
Appellant also contends that the short trial judge abused his
discretion in permitting Brett O'Toole to provide expert testimony. See
Hallmark v. Eldridge, 124 Nev. 492, 498,
189 P.3d 646, 650 (2008) (This
court reviews a district court's decision to allow expert testimony for abuse
of discretion."). In particular, appellant contends that Mr. O'Toole (1) did
not satisfy Hallmark's "qualification" requirement and (2) did not satisfy
Hallmarks"assistance" requirement.
With regard to the "qualification" requirement, appellant
contends that Mr. O'Toole, as a biomechanical engineer, was not qualified
to offer a medical opinion regarding the cause of appellant's injuries.
Implicit in appellant's argument is that respondent was required to rebut
appellant's medical expert with his own medical expert. We are not
persuaded that the short trial judge abused his discretion in finding that
Mr. O'Toole was qualified to offer a biomechanical opinion. First, the only
Nevada authority appellant points to for the proposition that a medical
opinion must be rebutted by another medical opinion is our unpublished
disposition in Didier v. Sotolongo, Docket No. 76289 (Order of Affirmance,
May 31, 2019). However, in Didier, there was no testimony whatsoever to
SUPREME COURT
OF
NEVADA
2
(01 1947A 44gata,
rebut the plaintiffs medical expert. Id. at 4-5. Thus, Didier does not
necessarily stand for the proposition that a medical opinion must be
rebutted by a different medical opinion.
Moreover, respondent has cited to several cases from other
jurisdictions that have found a biomechanical expert's testimony to be
permissible, so long as the biomechanical expert opines only as to what
injuries would generally occur from a particular incident and does not opine
specifically regarding the causation of the plaintiffs injury (i.e., what
respondent refers to as the general causation/specific causation distinction).
See, e.g., Bowers v. Norfolk S. Corp., 537 F. Supp. 2d 1343, 1377 (M.D. Ga.
2007) C[B]iomechanical engineers typically are found to be qualified to
render an opinion as to the forces generated in a particular accident and the
general types of injuries those forces may generate. However,
biomechanical engineers ordinarily are not permitted to give opinions about
the precise cause of a specific injury. This is because biomechanical
engineers lack the medical training necessary to identify the different
tolerance levels and preexisting medical conditions of individuals . . . ."
(internal quotation marks and citations omitted)); Burke v. TransArn
Trucking, Inc.,
617 F. Supp. 2d 327, 334 (M.D. Pa. 2009) (concluding that a
biomechanical engineer "may not testify as to the extent of injuries suffered
by Plaintiff, which would require the identification and diagnosis of a
medical condition, but may testify that the force sustained by Plaintiff in
the subject accident could potentially cause certain injuries as this amounts
to a biomechanical determination"); see also Gostyla v. Chambers,
171 A.3d
98, 102-03 (Conn. 2017) C[A]lthough biomechanical engineers are qualified
to testify about the amount of force generated by a collision and the likely
effects of that force on the human body, they are not qualified to render
opinions about whether a collision caused or contributed to a particular
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individual's specific injuries because they are not medical doctors.");
Thomas v. YRC Inc., No. 16 Civ. 6105 (AT)(HBP), 2018 WL 919998, at *5
(S.D.N.Y. Feb. 14, 2018) ("It is well settled that biomechanical experts are
permitted to opine as to general causation of injuries in motor vehicle
accident cases; i.e., whether the force sustained by a plaintiff in the subject
accident could potentially cause certain injuries." (internal quotation marks
omitted)). Based on these authorities, we cannot conclude that Mr.
O'Toole's testimony or expert report violated the general causation/specific
causation distinction for which these cases stand.2
With regard to the "assistance requirement, appellant
contends Mr. O'Toole's opinion was not "the product of a reliable
methodology," Hallmark, 124 Nev. at 500,
189 P.3d at 651, because he did
not personally inspect either vehicle.3 Relying on Levine v. Remolif,
80 Nev.
168, 172,
390 P.2d 718, 720 (1964), and Choat v. McDorman,
86 Nev. 332,
335,
468 P.2d 354, 356 (1970), which both held that an expert could not
opine regarding the speed of a vehicle based solely on reviewing
photographs of the vehicle, appellant appears to contend that Mr. O'Toole's
failure to personally inspect the vehicles automatically means that his
opinion was not the product of a reliable methodology for purposes of
Hallmark.
2In this, we note that the appellate record contains no transcript of
Mr. O'Toole's trial testimony. The only portion of Mr. O'Toole's expert
report that appellant cites to as objectionable is his opinion that appellant
"would have been subjected to a lower level of force than that which has
been shown to cause no injury, beyond soreness lasting up to a few days at
the most." In our view, this is a permissible general-causation opinion
based on the above-cited authorities.
3Mr. O'Toole's colleague did personally inspect respondenes vehicle,
and the record suggests that appellant's employer may have prevented Mr.
O'Toole from inspecting the vehicle that appellant was driving.
4
We are not persuaded by this contention, as Hallmark provided
a list of five nonexhaustive factors to determine when an expert's opinion is
based upon reliable methodology, 124 Nev. at 500-01,
189 P.3d at 651-52,
only some of which arguably have any bearing on Mr. O'Toole's failure to
personally inspect the vehicles, and none of which appellant has specifically
addressed. Thus, we conclude that the short trial judge was within his
discretion in finding that Mr. O'Toole's opinions would be of assistance to
the jury, and that it was up to the jury to determine how much weight to
give his opinions in light of his failure to personally inspect the vehicles. Cf.
Mathews v. State,
134 Nev. 512, 516,
424 P.3d 634, 639 (2018)
("[B]iomechanical experts are not precluded from testifying altogether, and
weaknesses in a purported expert's testimony.. . . go[ ] to the weight, not the
admissibility, of the evidence." (internal quotation marks omitted)).
Accordingly, we are not persuaded that the short trial judge committed
reversible error in admitting Mr. O'Toole's testimony and report. In light
of the foregoing, we
ORDER the judgment of the district court AFFIRMED.
J.
Cadish
()icileu tuf , J.
-41
J.
Pickering Herndon
cc: Hon. Timothy C. Williams, District Judge
Janet Trost, Settlement Judge
Randal R. Leonard
Law Offices of Steven M. Burris, LLC
Winner & Sherrod
Eighth District Court Clerk
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