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State's high court ruled 'rebuttal' testimony by nurse admissible.

A NURSE'S TESTIMONY AS TO CAUSATION IS INADMISSIBLE, However, in this case a nurse's rebuttal testimony for a defendant was held admissible.

THE SUPREME COURT OFNEVADA HEARDTHIS CASE ON PETITIONS FOR WRITS OF MANDAMUS CHALLENGING A LOWER COURT'S ORDER REGARDING ADMISSIBILITY OFREBUTTALTESTIMONYBYAN RN. Consolidated petitions arose out of two separate suits resulting from an outbreak of hepatitis C at the Endoscopy Clinic of Southern Nevada (ECSN). One suit was brought by the Williams plaintiffs and the other by the Pagan plaintiffs The defendants included companies in the pharmaceutical industry that were sued by former patients who were allegedly infected with hepatitis C while having procedures performed at ECSN. In each case the plaintiffs sued the defendants for strict products liability, including design defect, failure to warn, and breach of implied warranty of fitness for a particular purpose. The Pagan plaintiffs alleged that defective vials of the anesthetic Propofol caused them to contract hepatitis C. They claimed that the defendants (collectively Sicor), were liable for the distribution of 50 ml. vials of Propofol to endoscopy clinics because that size vial lends itself to reuse and contamination. The Williams plaintiffs alleged specifically, that medical personnel at ECSN injected them with needles contaminated with hepatitis into vials of Propofol, and medical personnel reused those vials and injected the plaintiffs with the then-contaminated Propofol. To rebut the plaintiffs' allegations, the defendant. Sicor obtained opinions from several experts, including the two who are at issue in this case: David Hambrick, an RN and Jonathan Cohen. M.D., a professor of medicine. In both cases these experts opined that improper cleaning and disinfection techniques at the clinics may have caused the plaintiffs to contact hepatitis C. The Pagan plaintiffs referred to this as the "dirty scopes^ theory. Based on those opinions, all plaintiffs filed motions in limine to exclude Nurse Hambrick's and Dr. Cohen's testimony. I lowever, the lower courts hearing the cases came to different conclusions concerning Nurse Hambrick. The Pagan plaintiffs filed motions in limine to exclude expert testimony regarding the 'scopes theory." The Williams plaintiffs contended that neither of Sicors' experts could give testimony as to causation. Further, they argued that Nurse Hambrick could not give expert testimony as to causation since she was a nurse. The lower court granted the Pagan plaintiffs' petition to exclude the testimony of the witnesses due to differences in the tacts of their suit. The Williams petitioned for writs of mandamus.

THE SUPREME COURT OF NEVADA HELD THAT TESTIMONY AS TO CAUSATION, TO BEGIVEN BYANURSE, DOES NOT MAKE IT INADMISSIBLE, PER SE. The court noted that an exception to its normal rule rejecting writ petitions challenging evidentiary rulings was necessary in this matter, and exercised its discretion to consider the petitions. The court granted in part and denied in part the Williams' Petition for extraordinary writ relief and directed the clerk of the court to issue a writ of mandamus instructing the lower court to set aside that portion of its order allowing Nurse Hambrick to testify as to medical causation. The court further granted in part and denied in part Sicor's petition for extraordinary writ relief and directed the clerk of the court to issue a writ of mandamus instructing the lower court to set aside that portion of its order excluding Nurse Hambrick from testifying as an expert witness on the subjects of proper cleaning and sterilization procedures for endoscopic equipment. The court noted that Nurse Hambrick could testify within his area of expertise, since the court concluded that he did not possess the requisite qualifications. Thus, he could not testify as to causation.

THECOURT RECOGNIZED THAT THE CONSOLIDATED WRIT PETITIONS RAISED TWO NOVEL ISSUES THE ON THE ADMISSIBILITY OF EXPERT TESTIMONY. They were; (I) 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. The court concluded 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. The court also took the opportunity to clarify the standard for defense expert testimony regarding medical causation and concluded 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 to a reasonable degree of medical probability. 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, rebuttal testimony by a nurse need not be stated to a reasonable degree of medical probability. Thus, the court held this was a case in which nurse testimony could be used in rebuttal. Williams v. Eighth Judicial District Court, 127 Nev. Adv. Op. No. 45 NVSC--S. W.3d--(7/28/2011)-NV
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Publication:Nursing Law's Regan Report
Date:Aug 1, 2011
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