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This action arises out of a fall from a ladder manufactured by Krause Inc. Standing on the ladders third step, the plaintiff inadvertently bumped a release lever, the ladder collapsed and the claimant fell breaking his ankle. A lawsuit ensued with the plaintiff proceeding on a strict products liability theory based upon a manufacturing and/or design defect. Plaintiff retained a registered mechanical engineer to perform tests on the accident ladder. A portion of the tests involved replicating the accident as described by the plaintiff. During jury deliberations, the jury took the accident ladder, (which had been admitted into evidence), and reenacted the experts experiments. After a finding in favor of the plaintiff was rendered, the manufacturer moved for a new trial challenging the jury’s authority to recreate the accident based upon expert testimony. The lower Court denied the motion for new trial and the Supreme Court affirmed. The Supreme Court noted that the jury’s function is to be the final arbiter of truth based upon submitted evidence. Stating that the jury did not take it upon itself to devise its own experiment and further did not consider objects or opinions not admitted into evidence, the Court concluded that the jury performed its duties in a legitimate and befitting manner. The Court noted decisions from several other jurisdictions holding that juror re-enactments of experts experiments do not constitute misconduct if they are designed to test the truth of the experts statement based upon the evidence admitted at time of trial. Jury instructions were also challenged, including an instruction based upon future damages. The district court had instructed the jury it could award reasonable compensation that the plaintiff was reasonably certain to experience in the future as a result of the accident. This instruction was challenged on the basis that the plaintiff presented no expert testimony regarding future damages. The Supreme Court noted that it previously held that when an injury or disability is subjective and not demonstrable to others expert medical testimony is necessary before a jury may award future damages. (See Gutierrez v. Sutton Vending Service, 80 Nev. 562 (1964)) However, the Court had also previously held that where an injury caused a demonstrably limited range of motion it is such an objective injury that does not require expert testimony. (See Paul v. Imperial Palace, Inc., 111 Nev. 1544 (1995)) The Court concluded that a broken bone injury is closer in objectivity to the Paul rather than the Gutierrez opinion. The Court found that the nature of the injury was clear and readily observable and that the jury did not need expert testimony to understand the magnitude of the injury. The Court also noted that it is common knowledge that broken bones cause pain and suffering. There was a strong dissent to this element of the Court’s decision. The dissent noted the Supreme Court also decided a case in between Gutierrez and Paul entitled Lerner Shops of Nevada v. Marin (83 Nev. 75 (1967)). In Lerner, the standard was that the claim must be substantially supported by expert testimony showing that future pain and suffering is a probable consequence rather than a mere possibility. The dissent further noted that the Paul Court approved the Lerner language and that in Paul the plaintiff’s attending physician supported a disability rating with his testimony. In the present case, the plaintiff was released to full activity by his doctor and there was no testimony that he had suffered any permanent disability or that it was probable that he would experience future pain or suffering. The dissent concluded that the more proper action would have been a remand to the district court with instructions to issue a remittitur reducing the verdict by the amount of the future damages or, alternatively, granting a new trial. This case also visited, once again, Nevada’s standard on admissibility of expert testimony in light of Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). Noting that the Nevada Supreme Court had previously declined to adopt Daubert’s standards in Allum v. Valley Bank of Nevada, 114, Nev. 1313, (1998), the Court expressly reaffirmed its legal standard concerning admissibility of expert testimony. The Court cited practitioners to NRS 50.275 which provides that if scientific, technical or other specialized knowledge assist the trier of fact to understand the evidence or to determine a fact in issue, expert testimony is allowed. Being that plaintiff’s expert was a registered mechanical engineer the Court found no abuse of discretion in the lower courts decision to characterize him as a qualified expert with special knowledge in ladders that could assist the jury.
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