Strategies, Challenges, and Answers

Everyone Has Their Own Opinion. But Is That Opinion Admissible?

The case of Mikulich v. Carner, 69 Nev. 50, 240 P.2d 873 (1952) is an historically interesting read.  A bus and a tractor trailer met at night on US 95, the two-lane highway between Las Vegas and Reno.  (For readers not from Nevada, portions of that highway are still only one lane in each direction).  The vehicles sideswiped each other resulting in injury and death to passengers on the bus.

Old bus 1956 At the trial, the tractor trailer driver was asked, “Do you know what caused the accident”.  When he said “yes”, the judge allowed him to continue, in spite of the objections of the bus company’s attorney.  The colloquy went like this:

“By Mr. Graves:           Q. What caused it?

A. Bright lights.

“By Mr. Sundean:         I will move to strike that answer on the ground it is incompetent, irrelevant and immaterial.

“By the Court:              It may stand.

“By Mr. Graves:           Q. Now, you said bright lights. What do you mean ‘bright lights’?

A. Bright lights on the part of the bus.”

The jury found against the bus company, resulting in this appeal.  When they looked at the case, the only issue the Nevada Supreme Court considered was whether the trial judge made a mistake by allowing this opinion testimony from a lay witness.  The Nevada Supreme Court ruled that the truck driver was not an expert.  The Supreme Court agreed that his opinion invaded the province of the jury and that the opinion went to the “ultimate issue” of the case.  Finally, the court found that the opinion was prejudicial.  In the end, the Nevada Supreme Court said that the inappropriate admission of the opinion of the truck driver required that the verdict be overturned and sent the case back for what may well have been another 13 day trial.

The evidence rules are still very similar.  Mostly, opinion testimony is still given by experts.  N.R.S. 50.275 and N.R.S. 50.285.  Lay witnesses can give limited opinion testimony, so long as the opinions are (1)  Rationally based on the perception of the witness; and  (2).  Helpful to a clear understanding of his testimony or the determination of a fact in issue.  N.R.S. 50.265.

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