Do You Need Magic Language?

There still exists a belief among certain lawyers that an expert’s opinion must be struck unless the expert recites magic language stating the opinion is to a reasonable degree of (insert field) probability. 

The topic arose again in Singletary v. Lee, a dental malpractice case. In that case, the jury found for the patient, but the district court granted judgment as a matter of law. On appeal, a panel of the Supreme Court reversed. “The district court determined that the dental expert’s testimony should have been stricken as inadmissible because the expert did not use the phrase ‘to a reasonable degree of medical probability’ in rendering his opinion on the standard of care following a tooth extraction.” In other words, the expert’s opinions were unreliable because the expert did not recite ritualistic language. This was incorrect. “While medical expert testimony regarding standard of care must be made to a reasonable degree of medical probability, there is no requirement that the specific phrase ‘reasonable degree of medical probability’ must be used by the expert in their testimony.” Proper evaluation of the expert’s testimony should have focused on “the nature, purpose, and certainty of the dental expert’s testimony rather than whether he uttered a specific phrase.”

The Nevada Supreme Court then reviewed the expert’s testimony. He “did not use speculative, hypothetical, or equivocal language.  Appellant’s expert provided a definitive opinion as to the standard of care….”  This was sufficiently certain to make the testimony reliable.

For the full opinion, go here (log-in required.)

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