N.M. R. Evid. 11-702
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
N.M. R. Evid. 11-702
Committee commentary. - The language of Rule 11-702 NMRA was amended in 2012 to be consistent with the restyling of the Federal Rules of Evidence, effective December 1, 2011, to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on admissibility.
New Mexico has not adopted the changes made to the federal rule in 2000 to incorporate the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in light of the differences between federal law and New Mexico law regarding whether Daubert applies to nonscientific testimony.
[Adopted by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012, modified the title of the rule and rewrote the rule to make stylistic changes. Compiler's notes. - This rule is similar to Rule 702 of the Federal Rules of Evidence. I. GENERAL CONSIDERATION. Accountant malpractice claim based on accountant's conflict of interest. - In a professional malpractice case based on an accountant's purported conflict of interest, expert testimony is necessary to establish the applicable standard of conduct, unless exceptional circumstances make the alleged breach so obvious that it falls within the common knowledge of an average person. Buke, LLC v. Cross Country Auto Sales, LLC, 2014-NMCA-078, cert. denied, 2014-NMCERT-007. Where the accountant was hired by plaintiff's manager to prepare tax returns and review financial statements for plaintiff; the accountant had prepared tax returns for the defendant dealerships and was a member of a business in which the manager was a member; the manager used plaintiff's GM credentials and GMAC credit line to purchase vehicles for the defendant dealerships; the accountant determined that plaintiff's GM credit line exceeded the value of plaintiff's inventory of vehicles on its car lot floor and that one defendant dealership had vehicles for which it had not paid plaintiff; and plaintiff sued the accountant for breach of professional duty on the ground that the accountant had a conflict of interest between plaintiff's interests and the defendant dealership's interests, expert testimony was necessary to establish the applicable standards of conduct regarding the accountant's conflict of interest, because an average person would not know whether or how a conflict of interest might arise when an accountant prepares tax returns or reviews financial statements. Buke, LLC v. Cross Country Auto Sales, LLC, 2014-NMCA-078, cert. denied, 2014-NMCERT-007. Distinction between personal use and trafficking drugs. - Where a police officer worked for a sheriff's department for eight years, received training in basic narcotics recognition and interdiction, and investigated hundreds of drug-related offenses; as a narcotics detective, the officer received substantial advanced narcotics training, did undercover work, worked on a task force with federal agencies, and was an instructor at the police academy, citizens groups and the district attorney's office; at the police academy, the officer taught narcotics investigation courses on the distinction between trafficking amounts of drugs and personal amounts and recognition of trafficking evidence; the officer performed a thousand drug investigations during which the officer learned about narcotics use and sales from people the officer had arrested; and the officer presented at drug trafficking conferences, the officer was qualified, based on knowledge and experience, to testify as an expert in distinguishing between personal use and trafficking amounts in terms of crack cocaine. State v. Rael-Gallegos, 2013-NMCA-092, cert. denied, 2013-NMCERT-009. Acceptance of witness as an expert witness. - Where defendant's vehicle rear-ended another vehicle; defendant fled the scene of the accident; defendant's counsel objected to the arresting officer offering an opinion regarding the cause of the accident on the ground that the officer was not an expert; the officer testified that the officer worked in the traffic division of the police force, attended schools to become a traffic crash reconstructionist, held certificates as a traffic crash reconstructionist, and worked primarily in investigating traffic collisions; and the trial court overruled defense counsel's continued objection, there was sufficient notice to the parties that the trial court was accepting the officer as an expert witness and did not abuse its discretion by allowing the officer to offer an opinion as to the cause of the accident. State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1. Police officer. - Where a police officer's primary duty was investigating traffic accidents; the officer had training in basic accident reconstruction and traffic crash reconstruction; the officer was certified as a traffic crash reconstructionist; and the officer did not witness the accident, the officer was qualified to testify about the cause of the accident. State v. Bullcoming, 2008-NMCA-097, 144 N.M. 546, 189 P.3d 679, aff'd in part, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1. Purpose of expert's opinion is to aid trier of facts in making a determination or decision on the issue upon which the opinion is given, or toward which it is directed, and such an opinion does not preclude the trier of the facts from considering nonexpert evidence on the issue. An expert opinion is not intended to preclude the trier of the facts in determining or deciding the issue. State v. Smith, 1969-NMCA-016, 80 N.M. 126, 452 P.2d 195. In a prosecution for criminal sexual penetration, testimony of a clinical psychologist was helpful to the jury in understanding how Down's Syndrome affected the victim's mental capacity and why her biological age was not an accurate guide to her understanding of the nature and consequences of the sexual acts to which she was subjected by defendant. State v. Hueglin, 2000-NMCA-106, 130 N.M. 54, 16 P.3d 1113. Expert testimony was not required to support charges that a dentist submitted a false claim for reimbursement and that he was guilty of unprofessional conduct and failed to practice dentistry in a professionally competent manner. Where the agency conducting the hearing is itself composed of experts qualified to make a judgment as to the licensee's adherence to standards of professional conduct, there is no need for the kind of assistance an expert provides in the form of an opinion. Weiss v. N.M. Bd. of Dentistry, 1990-NMSC-077, 110 N.M. 574, 798 P.2d 175. Nothing compels trier of facts to disregard nonexpert testimony and to accept the opinions of defendant's medical experts as to his probable state of mind and incapacity to control his will at the time of committing a criminal act. The jury is not required to accept these expert opinions and disregard all other evidence bearing on the question of his mental and emotional state, nor is the trial court bound to accept these expert opinions and dismiss the charges of first and second-degree murder. State v. Smith, 1969-NMCA-016, 80 N.M. 126, 452 P.2d 195. Jury may accept nonexpert over expert testimony. - In New Mexico a jury is not required to accept expert opinion and to reject contradictory nonexpert opinion. State v. James, 1973-NMCA-077, 85 N.M. 230, 511 P.2d 556, cert. denied, 85 N.M. 228, 511 P.2d 554. Testimony as to basis of opinion required. - An expert witness must satisfactorily explain steps followed in reaching a conclusion and give reasons for his opinion. Shamalon Bird Farm, Ltd. v. United States Fid. & Guar. Co., 1991-NMSC-039, 111 N.M. 713, 809 P.2d 627. Conclusions of expert are as much evidence as are his observations. State ex rel. State Hwy. Comm'n v. Steinkraus, 1966-NMSC-134, 76 N.M. 617, 417 P.2d 431. Facts not relied upon by expert. The trial court did not err in disallowing the defendant's cross-examination of pathologist regarding the victim's blood alcohol content, where the pathologist testified that she had arrived at her conclusions and completed the victim's death certificate without waiting for a toxicology report. State v. Wildgrube, 2003-NMCA-108, 134 N.M. 262, 75 P.3d 862, cert. denied, 134 N.M. 179, 74 P.3d 1071. Opinion of expert, although uncontradicted, is not conclusive of fact in issue. The fact finder may reject expert opinion evidence in whole or in part. Van Orman v. Nelson, 1967-NMSC-069, 78 N.M. 11, 427 P.2d 896. Trier of fact to weigh expert's testimony. - The weight to be given the testimony of an expert on handwriting is for the trier of fact. Price v. Foster, 1985-NMCA-038, 102 N.M. 707, 699 P.2d 638. Expert testimony in claims of legal malpractice means testimony of lawyers. Sanders v. Smith, 1972-NMCA-016, 83 N.M. 706, 496 P.2d 1102, cert. denied, 83 N.M. 698, 496 P.2d 1094. Testimony regarding the operation of cell phone towers requires a duly qualified expert.- In defendant's murder trial, where the state's lay witness testified about how cell towers operate and interact with cell signals to locate the general origin of a cell phone call, the trial court erred in allowing the lay witness testimony, because understanding how cell towers operate requires a duly qualified expert to explain the technical nature of the many variables that influence how cell tower signals connect with cell phones in order to ascertain the general location of defendant's phone at a particular point in time, and the State failed to establish that the witness had the specialized knowledge and experience to reliably explain how the cell tower operated in determining the general location of defendant' cell phone; this type of cell phone-related information is highly technical and requires specialized knowledge of a qualified expert to ensure that the testimony will help the trier of fact to understand the evidence or to determine a fact in issue, rather than confuse the issues or mislead the jury. State v. Carrillo, 2017-NMSC-023. That doctor stated he was not an expert did not deprive his testimony of its value as expert testimony. Williams v. Skousen Constr. Co., 1963 -NMSC-218, 73 N.M. 271, 387 P.2d 590. Expert may testify based on evidence already before jury. - Expert testimony as to speed of automobile based on evidence already before the jury was not an invasion of the province of the jury and did not constitute prejudicial error. Alford v. Drum, 1961-NMSC-048, 68 N.M. 298, 361 P.2d 451. Court may require all other testimony before expert testifies. - Court did not err in refusing to permit the testimony of expert witnesses until all evidence forming a basis for formation of such expert opinion had been introduced by the petitioner, since the order of proof in a case is addressed to the sound discretion of the trial court. State ex rel. State Hwy. Dep't v. Fox Trailer Court, 1971-NMSC-097, 83 N.M. 178, 489 P.2d 1176. Conflicting expert testimony not case for physical fact doctrine application. - Conflicting expert testimony based upon physical facts as well as the application of knowledge of scientific principles in the possession and control of the experts is not a case for application of the physical facts doctrine. Jaramillo v. Anaconda Co., 1962-NMSC-166, 71 N.M. 161, 376 P.2d 954. Expert may show rifle safe if other expert contends otherwise. - It was proper for appellee to show that the poundage pressure required to move the safety lever on a rifle from "safe" to "fire" measured two and one-half pounds, and also to show the poundage pressure required in rifles with identical safety devices, where appellant's expert had contended that the rifle was unsafe, thus giving rise to the issue of the pressure required to move the safety lever. Lopez v. Heesen, 1961-NMSC-122, 69 N.M. 206, 365 P.2d 448. Expert's failure to remember making statement not ground for striking. - It was not abuse of discretion by trial court to refuse to strike expert testimony from record where witness did not deny that he gave testimony appearing in record, but claimed only to not remember making statement. State v. Chavez, 1972-NMCA-127, 84 N.M. 247, 501 P.2d 691. Affidavit expert opinion evidence not competent. - Plaintiff's attempt to establish an issue of fact on defendant's last clear chance to avoid the accident through the affidavit of an expert witness failed, both because the affidavit opinion evidence was not competent evidence and because the affidavit, even if admissible, did not show that defendant had time for appreciation, thought and effective action. Catalano v. Lewis, 1977-NMCA-016, 90 N.M. 215, 561 P.2d 488, cert. denied, 90 N.M. 254, 561 P.2d 1347. Court may refuse expert's testimony if only cumulative. - Refusal of the court to permit the commission to call an expert employed but not used by the landowner is not error when the tendered testimony would only be cumulative. State ex rel. State Hwy. Comm'n v. Steinkraus, 1966-NMSC-134, 76 N.M. 617, 417 P.2d 431. Surprise testimony properly excluded. - Exclusion of an expert witness's testimony was justified, where his testimony was surprise testimony because his opinions and the factual basis for the opinions were virtually unknown on the eve of trial and, in light of his total unfamiliarity with the record, it was likely that his opinion would not add anything outside the experience of a layperson. Shamalon Bird Farm, Ltd. v. United States Fid. & Guar. Co., 1991-NMSC-039, 111 N.M. 713, 809 P.2d 627. Registered engineer's testimony not barred because not licensed private investigator. - Testimony by a registered professional engineer under the Engineering Practice Act (Chapter 61, Article 23 NMSA 1978), whether "as an engineer" or as a traffic expert concerning the accident and arriving at his opinion as to the speed of the defendant's car was not controlled by the Private Investigators Act (former 61-27-1 to 61-27-49 NMSA 1978, see now Chapter 61, Article 27B NMSA 1978) and therefore the expert's testimony was not barred by the fact that he was not a licensed private investigator. Dahl v. Turner, 1969-NMCA-075, 80 N.M. 564, 458 P.2d 816, cert. denied, 80 N.M. 608, 458 P.2d 860. Medical nonspecialist can testify as to standards of care owed by defendant medical specialist, if nonspecialist is qualified and competent to do so. Sewell v. Wilson, 1982-NMCA-017, 97 N.M. 523, 641 P.2d 1070. Time to determine expert's competency at trial and not before. - The trial court erred in ruling on a pretrial motion that a well-qualified general surgeon was not competent to establish the standard of care for a general practitioner in a small community hospital emergency room because of his lack of knowledge of the routines, procedures, etc., obtaining in such hospitals at the time of depositions, since by the time of trial the surgeon could have filled in his knowledge merely by making inquiry; thus the time to determine his competency as an expert witness was at the time of trial, and not before. Griego v. Grieco, 1977-NMCA-018, 90 N.M. 174, 561 P.2d 36. Having waived any proof of qualifications, defendant should not be heard to complain that the witness was not qualified to testify concerning disability for civilian activities. Sturgeon v. Clark, 1961-NMSC-125, 69 N.M. 132, 364 P.2d 757. Inadmissibility of polygraph tests without stipulation violates due process. - The rule that polygraph test results are inadmissible except when, inter alia, the tests are stipulated to by both parties to the case and no objection is offered at trial is (1) mechanistic in nature; (2) inconsistent with the concept of due process; (3) repugnant to the announced purpose and construction of the Rules of Evidence; and (4) particularly incompatible with the purposes and scope of Rules 401, 402, 702 and 703 (now 11-401, 11-402, 11-702 and 11-703 NMRA). State v. Dorsey, 1975-NMSC-040, 88 N.M. 184, 539 P.2d 204. Supreme court has held that polygraph test results may be admitted when: (1) the tests were stipulated to by both parties to the case; (2) no objection is offered at trial; (3) the court has evidence of the qualifications of the polygraph operator to establish his expertise; (4) there is testimony to establish the reliability of the testing procedure employed as approved by the authorities in the field; and (5) there is evidence to show the validity of the tests made on the subject. However, because the supreme court at the time of its holding did not consider the effect of the Rules of Evidence or due process claim, where tendered polygraph results were relevant under Rule 11-402 NMRA and crucial to the defense in order to establish intent and provocation, they would be admitted despite the failure of the district attorney to stipulate to them and despite his objection to their admission. State v. Dorsey, 1975-NMCA-022, 87 N.M. 323, 532 P.2d 912, aff'd, 1975-NMSC-040, 88 N.M. 184, 539 P.2d 204. II. QUALIFICATIONS. The party seeking to admit expert testimony bears the burden of showing that the expert is qualified. - The party seeking to admit expert testimony bears the burden of showing that the expert is qualified, that the expert's testimony will assist the trier of fact, and that the expert will testify only as to scientific, technical, or other specialized knowledge with a reliable basis. Firstenberg v. Monribot, 2015-NMCA-062, cert. denied, 2015-NMCERT-006. Factors in determining whether scientific evidence has a reliable basis. - In determining whether scientific evidence has a reliable basis, the district court should consider whether a theory or technique can be tested, whether the theory or technique has been subjected to peer review and publication, the known potential rate of error in using a particular scientific technique and the existence and maintenance of standards controlling the technique's operation, whether the theory or technique has been generally accepted in the particular scientific field, whether the scientific technique is based upon well-recognized scientific principle, and whether it is capable of supporting opinions based upon reasonable probability rather than conjecture. Firstenberg v. Monribot, 2015-NMCA-062, cert. denied, 2015-NMCERT-006. In nuisance and prima facie tort case, where plaintiff claimed that defendant's use, within her own residence, of various electronic devices that generate electromagnetic radiation, including a cell phone, a Wi-Fi modem, dimmer switches, and a microcell, adversely affected plaintiff's health by aggravating his condition of electromagnetic sensitivity, the district court properly granted summary judgment in favor of defendant when plaintiff failed to bear his burden of showing that his witnesses were qualified to present expert, scientific testimony on the issue of general causation of plaintiff's electromagnetic sensitivity symptoms. Firstenberg v. Monribot, 2015-NMCA-062, cert. denied, 2015-NMCERT-006. Gang culture and behavior. - Where a police officer had 13 years of experience as a police officer working with gangs; at the time of the defendant's trial, the officer was an investigating officer with the Bernalillo County sheriff's department gang unit with responsibility for certifying gangs as criminal, identifying members of gangs, and collecting intelligence on and conducting investigations of gangs and individuals; the officer spent approximately 2,000 hours instructing other law enforcement officers about gang culture and investigation and wrote the Albuquerque, Bernalillo County street gang manual; the officer was certified by the New Mexico gang task force, the Bernalillo County sheriff's department and a private entity that certifies officers upon completion of the entity's gang specialization course; the officer's certification was valid with the FBI and the federal bureau of alcohol, tobacco, firearms and explosives; the officer authored training programs on gang-related law enforcement and was certified as an instructor with the New Mexico law enforcement training academy; the officer became familiar with Taos area gangs where the alleged murder occurred; the officer did not have a college degree; the officer had not testified as an expert before a jury prior to the defendant's trial; and the officer had never worked underground in a gang unit, the officer was qualified to testify on the subject of gang-related law enforcement and gang culture. State v. Torrez, 2009-NMSC-029, 146 N.M. 331, 210 P.3d 228. Drug Recognition Evaluator. - Where the state has established the scientific reliability of the 12-Step Protocol, a Drug Recognition Evaluator may testify as an expert witness regarding the administration and results of the Protocol as it is applied to a particular defendant. State v. Aleman 2008-NMCA-137, 145 N.M. 79, 194 P.3d 110. Whether expert qualified within court's discretion. - Whether an expert has the necessary qualifications to testify on any given proposition is within the discretion of the trial court and the court's ruling will not be disturbed unless that discretion has been abused. Sturgeon v. Clark, 1961-NMSC-125, 69 N.M. 132, 364 P.2d 757; Transwestern Pipe Line Co. v. Yandell, 1961-NMSC-173, 69 N.M. 448, 367 P.2d 938. Whether witness is shown to be qualified to testify as an expert is a matter addressed to the judicial discretion of the trial court. Alford v. Drum, 1961-NMSC-048, 68 N.M. 298, 361 P.2d 451; Madrid v. University of Cal., 1987-NMSC-022, 105 N.M. 715, 737 P.2d 74. Trial court has wide discretion in determining whether one offered as an expert witness is competent and qualified to give an opinion on any given subject or proposition, and the court's determination of this question will not be disturbed on appeal, unless there has been an abuse of this discretion. Jaramillo v. Anaconda Co., 1962-NMSC-166, 71 N.M. 161, 376 P.2d 954; Wood v. Citizens Std. Life Ins. Co., 1971 -NMSC-011, 82 N.M. 271, 480 P.2d 161. The determination of whether an expert has the necessary qualifications to testify upon a given proposition is in the discretion of the trial judge and will not be overturned unless an abuse of such discretion is shown. State ex rel. State Hwy. Dep't v. Fox Trailer Court, 1971-NMSC-097, 83 N.M. 178, 489 P.2d 1176. The admission or exclusion of expert testimony is peculiarly within the discretion of the court and its decision will not be reviewed unless the exercise of that discretion has been abused. State Farm Fire & Cas. Co. v. Miller Metal Co., 1971-NMCA-177, 83 N.M. 516, 494 P.2d 178. In not allowing testimony of plaintiff "expert" witness owing to his lack of qualifications, the trial court exercised its discretion which when neither an abuse of discretion nor manifestly wrong will be sustained on appeal. Hill v. Burnworth, 1973-NMCA-135, 85 N.M. 615, 514 P.2d 1312. It is the trial judge's responsibility to determine whether an offered expert is sufficiently qualified to testify in a cause, and he should exercise discretion in allowing or denying the testimony to be introduced, which discretion will be interfered with by the appellate court only when it has been abused, and it was held that a state police narcotics agent who had conducted 200 to 300 similar tests, 80 of which had been used in various nonfelony cases, preliminary hearings and children's cases not involving felonies was sufficiently expert to qualify for the purposes of delinquency petitions which involved a marijuana offense which would have been a misdemeanor if committed by an adult. In re Doe, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248. Whether a witness qualifies as an expert is a decision for the trial court, and its determination will not be overturned absent a showing of abuse of discretion. Duran v. Lovato, 1982-NMCA-182, 99 N.M. 242, 656 P.2d 905. The trial court has wide discretion to determine whether a witness is qualified to give testimony as an expert and its determination will not be disturbed unless there has been an abuse of discretion. Shamalon Bird Farm, Ltd. v. United States Fid. & Guar. Co., 1991-NMSC-039, 111 N.M. 713, 809 P.2d 627. The trial court acts as a gatekeeper and determines if the particular expert tendered has the qualifications to testify in the particular case. Lopez v. Reddy, 2005-NMCA-054, 137 N.M. 554, 113 P.3d 377. Absent an abuse of discretion under this rule, the trial court's determination will stand. Lopez v. Reddy, 2005-NMCA-054, 137 N.M. 554, 113 P.3d 377. Court's determination upheld unless manifestly wrong or court applied wrong legal standards. - The trial court's determination that a witness is qualified to testify as an expert will not be disturbed unless the ruling is manifestly wrong or the trial court has applied wrong legal standards in the determination. Dahl v. Turner, 1969-NMCA-075, 80 N.M. 564, 458 P.2d 816, cert. denied, 80 N.M. 608, 458 P.2d 860. Jury deference ignored. - It is the duty of the courts to determine initially whether expert testimony is competent under this rule, not whether the jury will defer to it, as it is not within the province of the courts to assume that juries will accord undue weight to expert opinion testimony as a pretext for excluding it. State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192. No rule is possible as to extent of knowledge required. - While it must appear that the witnesses have acquired sufficient knowledge or experience to testify, no rule can be laid down as to the extent of such knowledge. Dahl v. Turner, 1969-NMCA-075, 80 N.M. 564, 458 P.2d 816, cert. denied, 80 N.M. 608, 458 P.2d 860. Scope of expert's qualifications. - In an action contesting municipal water and sewer rates, a witness who otherwise qualified as an expert in the water services field was not required to have an accounting or finance background. Fleming v. Town of Silver City, 1999-NMCA-149, 128 N.M. 295, 992 P.2d 308, cert. denied, 128 N.M. 148, 990 P.2d 822. Trial court did not err in admitting expert testimony under this rule in an employee's product liability action against a manufacturer because the testimony was relevant and helpful to the jury; furthermore, although the expert was not an engineer, the trial court could have reasonably concluded that the expert's expertise in evaluating product designs and conveyor belts for safety hazards qualified the expert to offer opinions on the subject. Couch v. Astec Indus., Inc., 2002-NMCA-084, 132 N.M. 631, 53 P.3d 398, cert. denied, 132 N.M. 551, 52 P.3d 411. Abuse of discretion to exclude expert based on a rationale expressly rejected in a prior appeal. - In a wrongful death lawsuit based on allegations of medical malpractice where plaintiffs alleged that defendants negligently failed to diagnose and treat decedent's influenza and that decedent's death could have been prevented had he been properly diagnosed and treated with the antiviral drug Tamiflu when he was seen in the emergency room, the district court abused its discretion in excluding plaintiffs' expert witness based on a rationale that was expressly rejected by the court of appeals in a prior appeal. Holzem v. Presbyterian Healthcare Servs., 2017-NMCA-013. Exclusion of expert on a ground that was not at issue. - Where the decedent, who presented symptoms of influenza, was admitted to the emergency room at defendant's medical center; the treating doctor did not test the decedent for influenza, but provided a treatment to address the decedent's symptoms; decedent died several days later due to an influenza infection; at issue was the standard of care for diagnosing and treating influenza, specifically plaintiff's contention that the treating doctor should have given the decedent Tamiflu to prevent the replication of the influenza virus; plaintiff's expert witness was a physician who was an infectious disease specialist, who had taught about and specialized in treating infectious diseases for twenty-nine years at a university, and who had considerable experience in prescribing Tamiflu and in observing its effects on influenza, but who had not recently practiced and had not specialized in emergency medicine; and the district court excluded the expert witness' testimony on the ground that the witness was not qualified to render opinions on the standard of care in emergency medicine, the district court erred in excluding the witness' testimony, because the standard for diagnosing and treating influenza was not particular to emergency medicine and because the district court failed to consider the witness' experience in prescribing Tamiflu. Holzem v. Presbyterian Healthcare Servs., 2013-NMCA-100, cert. denied, 2013-NMCERT-009. Court may allow testimony where expert's qualifications accepted in his field. - Where the witness was fully qualified by his experience so as to warrant the acceptance of his qualifications by recognized specialists in the field, there was no abuse of discretion on the part of the trial court in allowing this witness's testimony to be presented to the jury. State v. Rose, 1968-NMSC-091, 79 N.M. 277, 442 P.2d 589, cert. denied, 393 U.S. 1028, 89 S. Ct. 626, 21 L. Ed. 2d 571 (1969); State v. Macias, 1990-NMCA-053, 110 N.M. 246, 794 P.2d 389. Where a nurse practitioner had specialized in diagnosing child sexual abuse from 1982 to 1988; had extensively read journals and other materials dealing with the subject; had attended a criminal justice program on sex abuse; and had been qualified to testify 23 times previously as an expert in child sexual abuse, she was a child sexual abuse expert based on her experience, training, and education, and it was proper to admit her testimony on the voluntariness of the victim's statement implicating the perpetrator. State v. Benny E., 1990-NMCA-052, 110 N.M. 237, 794 P.2d 380. In an action against a county race track by a jockey who was injured when his horse veered causing him to fall and strike a post and track rail, a witness who had both doctorate and master of science degrees in veterinary medicine and surgery and had specialized in animal behavior was properly determined to be qualified to state her opinion concerning the reasons for the horse's behavior at the time of the accident. Yardman v. San Juan Downs, Inc., 1995-NMCA-106, 120 N.M. 751, 906 P.2d 742. Qualifications of DNA expert. - DNA expert witness, who held a bachelor of science degree in biology and was the DNA analyst for the New Mexico Department of Public Safety, and whose training included specialized courses in molecular biology and a course in DNA analysis with the FBI, could not be said to be unqualified to testify; the jury was free to consider his qualifications when deciding what weight to give his testimony. State v. McDonald, 1998-NMSC-034, 126 N.M. 44, 966 P.2d 752. General acceptance within field not sole criteria. - The Frye test is not a legitimate means for determining what is scientific knowledge and should be rejected as an independent controlling standard of admissibility. Thus, the court's focus should not be solely on whether the scientific technique has gained general acceptance within its particular field, but on the validity and the soundness of the scientific method used to generate the evidence. State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192. Licensure not sole qualifying criterion. - The use of the disjunctive "or" in this rule indisputably recognizes that an expert witness may be qualified on foundations other than licensure. Madrid v. University of Cal., 1987-NMSC-022, 105 N.M. 715, 737 P.2d 74. Even though the expert, a biomechanical engineer, was not licensed as an engineer, the trial court did not abuse its discretion by qualifying him to testify as an expert witness regarding causation of temporomandibular joint injuries. Baerwald v. Flores, 1997-NMCA-002, 122 N.M. 679, 930 P.2d 816. To give scientific or specialized opinion testimony, an expert witness must be qualified to do so by knowledge, skill, training or education. Sewell v. Wilson, 1982-NMCA-017, 97 N.M. 523, 641 P.2d 1070. It is clear that qualified psychologist can testify as expert witness in New Mexico. State v. Tafoya, 1980-NMSC-099, 94 N.M. 762, 617 P.2d 151. Expert's opinion was reliable. - Where plaintiff, who hired defendant to build a dairy, sued defendant for losses in milk production that occurred as a result of the defective wiring of the dairy; plaintiff's expert witness testified that stray voltage affects cow's behavior, causing the cows to let down less than all of their milk and that the threshold amount of stray voltage necessary to adversely affect dairy animals was two to four volts; the evidence showed that there was stray voltage in the dairy before the defective wiring was corrected, that before the wiring was corrected, the cows were reluctant to enter the milking barn and milking time took longer, and that after the wiring was corrected, milk production improved dramatically; plaintiff did not offer any objective evidence of the amount of stray voltage in the dairy meeting the threshold amount that would affect milk production; and based on the expert's knowledge, experience, and training on the effects of stray voltage on dairy cows and the facts of the case, the expert testified that plaintiff's cows were exposed to a sufficient amount of stray voltage to adversely affect their milk production, the expert's opinion was sufficiently reliable to be admissible and the absence of measurable stray voltage meeting the threshold of two to four volts went to the weight the jury might give the opinion and did not make the opinion inadmissible. Loper v. JMAR, 2013-NMCA-098, cert. denied, 2013-NMCERT-008. Policeman may be expert. - A police officer who relies on a diagram and his notes to render an opinion regarding the area of impact and whether speed was a contributing factor in an automobile accident may be an expert witness. Duran v. Lovato, 1982-NMCA-182, 99 N.M. 242, 656 P.2d 905. Witness without sufficient educational qualifications or experience cannot testify. - Where a witness in a criminal case did not have a PhD degree and also lacked the required postgraduate training in clinical psychology and the necessary experience in an approved mental institution, the admission of his testimony relative to defendant's mental state was error. State v. Padilla, 1959-NMSC-100, 66 N.M. 289, 347 P.2d 312. Where a witness in a case involving a new home loan was called to testify as an expert on whether the plaintiff's bank had engaged in predatory lending practices and the witness had worked as a loan officer, but had limited experience with the type of loan at issue; had worked only as a loan officer under a broker's supervision; had only occasionally performed Home Loan Protection Act calculations; had no certifications or specific training or classes related to the issues of the case; and had never testified as an expert, substantial evidence supported the district court's discretion to exclude the witness' testimony and opinions. Bank of N.Y. v. Romero, 2011-NMCA-110, 150 N.M. 769, 266 P.3d 638, cert. granted, 2011-NMCERT-010. Trace evidence analyst. - Since the evidence introduced at trial demonstrated that analyst had in excess of 16 years of job experience performing trace evidence analysis, including hair analysis, the trial court did not abuse its discretion in qualifying analyst as an expert witness. State v. Hernandez, 1993-NMSC-007, 115 N.M. 6, 846 P.2d 312. III. ADMISSIBILITY. Gang behavior. - Where a police officer, who was qualified to testify on the subject of gang-related law enforcement and gang culture, testified from his personal experience with gangs that gang members retaliate in violent ways when disrespected and that being disrespected can occur in any number of ways, some of which could have been applicable in the defendant's situation if sufficient evidence of the defendant's gang affiliation had been presented to the jury, the trial court did not err in concluding that the officer's testimony regarding the motives of gang members was based on specialized knowledge, was reliable, and proved what it was offered to prove. State v. Torrez, 2009-NMSC-029, 146 N.M. 331, 210 P.3d 228. Where the defense hinged its case on the assertion that the child was coerced into making statements by his mother, due process required the district court to allow the defense to make its case with expert evidence, not concerning whether the specific act of abuse did or did not occur or that the child's mother did not did not coach the child to give his statements, but concerning the suggestibility of children and the percentages of false allegations in cases of sexual abuse involving children. State v. Campbell, 2007-NMCA-051, 141 N.M. 543, 157 P.3d 722, cert. granted, 2007-NMCERT-004. Blood splatter analysis is a discipline recognizable and admissible under this rule. State v. Fry, 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516. Where the trial court relied on the testimony establishing that blood splatter analysis can be and has been tested, has been subjected to peer review and publication, is conducted under a set of standards that are maintained in order to control the technique's operation, is generally accepted in the particular scientific field, is based on well established scientific principles, and is capable of producing opinions based on reasonable probability rather than speculation or conjecture, defendant failed to demonstrate an abuse of discretion in its admission by the trial court. State v. Fry, 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516. Polygraph examination results are sufficiently reliable to be admitted under this rule, provided expert is qualified and examination was conducted in accordance with Rule 11-707 NMRA. Lee v. Martinez, 2004-NMSC-027, 136 N.M. 166, 96 P.3d 291. Where there is no jury trial, evidence of expert is admissible within the sound discretion of the judge. State ex rel. State Hwy. Comm'n v. Pelletier, 1966-NMSC-141, 76 N.M. 555, 417 P.2d 46 (decided prior to the adoption of this rule). DNA evidence admissible. - The probative value of the DNA typing evidence outweighs its prejudicial effect. This evidence and the testimony will be probative because it links defendant to the crimes for which he has been charged. Any debate over the resulting probabilities that the "match" is random goes to the weight of the evidence and is properly left for the jury to determine. State v. Duran, 1994-NMSC-090, 118 N.M. 303, 881 P.2d 48. Determining validity and reliability of DNA testing. - The trial court may only examine whether the principles and methodology used in DNA testing are scientifically valid and generally accepted. The assessment of the validity and reliability of the conclusions drawn by DNA experts, however, is a jury question. State v. Anderson, 1994-NMSC-089, 118 N.M. 284, 881 P.2d 29; State v. Duran, 1994-NMSC-090, 118 N.M. 303, 881 P.2d 48. PCR analysis of DNA admissible. - The results of analysis of DNA using the polymer chain reaction (PCR) technique are sufficiently reliable to be admissible under this rule. State v. Stills, 1998-NMSC-009, 125 N.M. 66, 957 P.2d 51. Computer generated evidence. - When an expert witness uses a computer to develop an opinion on an issue, the opinion is based in part on the computer-generated evidence. In that situation, the proponent of the evidence must be prepared to show that the computer-generated evidence was generated in a way that is scientifically valid. State v. Tollardo, 2003-NMCA-122, 134 N.M. 430, 77 P.3d 1023, cert. denied, 2003-NMCERT-001. Where a crime scene reconstruction expert used a computer to help him supply missing information based on the physical evidence available, the resulting computer-generated images were not merely visual aids used to illustrate an opinion developed by other means, but rather they were used to develop the opinion to which the expert testified. Therefore, the Daubert/Alberico standard applied to their admissibility. State v. Tollardo, 2003-NMCA-122, 134 N.M. 430, 77 P.3d 1023, cert. denied, 2003-NMCERT-001. Computer-generated images are properly characterized as technical rather than scientific. As such, the critical inquiry is whether the method used to generate the images is a valid application of the principles of computer technology. State v. Tollardo, 2003-NMCA-122, 134 N.M. 430, 77 P.3d 1023, cert. denied, 2003-NMCERT-001. Where an expert testified that he had used computer aided design (CAD) programs for many years, and that he had found some discrepancies in some facets of a computer animation program and as a result cross-checked the animation images against the CAD images, this was all that was necessary to establish the validity of the method used to generate the images. State v. Tollardo, 2003-NMCA-122, 134 N.M. 430, 77 P.3d 1023, cert. denied, 2003-NMCERT-001. Where an investigating officer made measurements at a crime scene and entered the measurements into a computer that used the measurements to draw a diagram of the scene showing the path of the defendant's car, the point of impact with the victim's body, the point at which the body came to rest, and the location of other physical evidence at the scene, the trial court did not abuse its discretion in admitting the officer's testimony and the diagram. State v. Wildgrube, 2003-NMCA-108, 134 N.M. 262, 75 P.3d 862, cert. denied, 134 N.M. 179, 74 P.3d 1071. Horizontal gaze nystagmus test. - Because a horizontal gaze nystagmus test is scientific evidence, its admissibility is subject to the evidentiary reliability standard adopted in State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192, and explained in State v. Anderson, 1994-NMSC-089, 118 N.M. 284, 881 P.2d 29, and State v. Stills, 1998-NMSC-009, 125 N.M. 66, 957 P.2d 51. State v. Torres, 1999-NMSC-010, 127 N.M. 20, 976 P.2d 20. Hedonic damages. - Trial court did not err in admitting expert testimony regarding hedonic damages under this rule in an employee's product liability action against a manufacturer, because the testimony concerning general statistical life studies and values was helpful to the jury in evaluating the employee's claim for damages, and the expert did not improperly intrude into the jury's domain. Couch v. Astec Indus., Inc., 2002-NMCA-084, 132 N.M. 631, 53 P.3d 398, cert. denied, 132 N.M. 551, 52 P.3d 411. Validity of "scientific knowledge". - Several factors may be considered by a trial court in assessing the validity of a particular technique to determine if it is "scientific knowledge" under this rule, including the technique's relationship with established scientific analysis, the availability of specialized literature addressing the validity of the technique and whether the technique is generally accepted. State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192. District court erred in applying Alberico-Daubert standard to non-scientific testimony. - Where defendant was charged with homicide by vehicle and driving while under the influence of intoxicating liquor or drugs, and where the state appealed the district court's pretrial ruling prohibiting one of the state's witnesses from testifying as an expert, the district court erred in applying the Alberico-Daubert standard to the witness's testimony, because the witness's non-scientific expert testimony was based on his personal observations of physical evidence found at the scene and fit directly within the scope of his specialized training. State v. Ruffin, 2019-NMCA-009. Denial of expert testimony based on scientific knowledge was not error. - Where defendant was charged with homicide by vehicle and driving while under the influence of intoxicating liquor or drugs, and where the state appealed the district court's pretrial ruling prohibiting one of the state's witnesses from testifying as an expert, the district court did not abuse its discretion in prohibiting scientific testimony where the witness conceded that he needed to apply physics principles to discover the causation of the vehicle rollover, but that he elected not to conduct a full reconstruction, apply mathematical formulae, or engage in other procedures consistent with a final determination of how the accident occurred. The witness neither testified to, nor documented, any discernible methodology from which the district court could test the reliability of his opinion. State v. Ruffin, 2019-NMCA-009. Expert witness was properly qualified to testify in the field of accident reconstruction. - Where defendant was charged with vehicular homicide following a car crash during which defendant was intoxicated, the district court did not commit plain error in deciding the State's expert witness was qualified to testify as an expert in the general field of accident reconstruction where the expert was trained, certified, and experienced in accident investigation and reconstruction, assigned to a team of deputies tasked with investigating accidents, and had previously testified as an expert in accident reconstruction. State v. Bregar, 2017-NMCA-028, cert. denied. Admission of expert testimony involving scientific knowledge. - It is error for the district court to admit expert testimony involving scientific knowledge, unless the party offering such testimony first establishes the evidentiary reliability of the scientific knowledge, and whether scientific knowledge is reliable in turn requires an inquiry into whether the knowledge is derived from established scientific principles or methods. State v. Bregar, 2017-NMCA-028, cert. denied. Erroneous admission of expert witness's testimony did not result in plain error. - Where defendant was charged with vehicular homicide after crashing her car while intoxicated, and where the district court erred in admitting the testimony of the State's expert witness because, although the State's expert testified that he had been certified as an accident reconstruction expert, had performed at least fifty reconstructions of fatal car accidents, and had been involved with many more investigations into non-fatal car accidents, the testimony, standing alone, did not provide a basis for any meaningful evaluation of whether the expert's ultimate opinion, that defendant was driving the vehicle at the time of the crash, was a result of the application of a reliable scientific method, the erroneous admission of expert testimony did not result in plain error because the expert's opinion was not the sole or primary item of evidence indicating defendant's guilt. Viewed against the independent evidence of defendant's guilt, the expert's opinion did not likely affect the outcome of the jury's deliberations. State v. Bregar, 2017-NMCA-028, cert. denied. Erroneous denial of expert opinion testimony was harmless. - Where defendant was charged with first-degree, willful and deliberate murder, but convicted by a jury for second-degree murder, the district court's denial of expert testimony that defendant was incapable of forming specific intent to murder was an abuse of discretion because the witnesses were properly qualified as experts, the science underlying the proposed expert testimony satisfied the Daubert-Alberico factors, and the opinion testimony regarding defendant's impulsivity would have been relevant to whether defendant had the specific intent necessary for first-degree murder. The error, however, was harmless because defendant offered the expert testimony as a way to negate the specific intent element of first-degree murder, but the jury acquitted defendant for first-degree murder, and the opinion testimony was not relevant to the general intent crime of second-degree murder. State v. Yepez, 2018-NMCA-062, cert. granted. Admission of child abuse expert opinion on credibility error. - The trial court erred in admitting child sexual abuse expert's testimony as to the complainant's credibility, as it is not scientifically valid that a psychologist can determine that a crime "in fact" occurred. State v. Fairweather, 1993-NMSC-065, 116 N.M. 456, 863 P.2d 1077. Admission of expert opinion testimony setting forth a legal conclusion error. - Where plaintiff made a claim under the federal Emergency Medical Treatment and Active Labor Act (EMTALA), the district court abused its discretion in allowing defendant's expert witness to give his expert opinion on the purpose and scope of the EMTALA, because an expert witness permitted to testify to the meaning and application of a statute conveys what may be an erroneous legal standard to the jury and invades the court's province in determining and instructing the jury on the applicable law. Mikeska v. Las Cruces Reg'l Med. Ctr., 2016-NMCA-068, cert. denied. Where plaintiff made a claim under the federal Emergency Medical Treatment and Active Labor Act (EMTALA), and where defendant's expert witness testified that the purpose of the EMTALA is to provide access to care for uninsured or indigent patients and that the EMTALA was not enacted to address medical malpractice or negligence, the expert provided an erroneous and irrelevant legal standard to the jury, because a failure to examine or test pursuant to a standard screening procedure might support a medical malpractice claim under state law and at the same time also constitute evidence sufficient to support a claim for failure to give an appropriate medical screening under the EMTALA, and evidence of negligence or medical malpractice may also constitute evidence of a failure to stabilize an emergency condition under EMTALA; the expert witness's testimony as to his interpretation of the statute potentially confused and misled the jury about the applicable legal standard and what evidence was relevant to plaintiff's EMTALA claim. Mikeska v. Las Cruces Reg'l Med. Ctr., 2016-NMCA-068, cert. denied. Expert needs facts to make reasonably accurate conclusion. - Expert testimony may be received if, and only if, the expert possesses such facts as would enable him to express a reasonably accurate conclusion, as distinguished from mere conjecture. Leon, Ltd. v. Carver, 1986-NMSC-015, 104 N.M. 29, 715 P.2d 1080. Court determines whether sufficiently qualified and exercises discretion on admissibility. - It is the trial judge's responsibility to determine whether an offered expert is sufficiently qualified to testify in a cause, and he should exercise discretion in allowing or denying the testimony to be introduced. State v. Garcia, 1966-NMSC-063, 76 N.M. 171, 413 P.2d 210 (decided prior to the adoption of this rule). This rule imposes a "gate-keeping" function on a trial court judge as to the admissibility of an expert's opinion. Lopez v. Reddy, 2005-NMCA-054, 137 N.M. 554, 113 P.3d 377. Admission or exclusion of expert testimony is peculiarly within discretion of the court and its decision will not be reviewed unless the exercise of that discretion has been abused. Cantrell v. Dendahl, 1972-NMCA-035, 83 N.M. 583, 494 P.2d 1400 (decided prior to the adoption of this rule). Expert testimony admissible if it assists jury in determining issue. - Testimony by a properly qualified expert, on sufficient foundational facts, is presently admissible if the testimony would assist the jury in determining an issue. State v. Elliott, 1981-NMCA-111, 96 N.M. 798, 635 P.2d 1001. Expert testimony assisted the jury. - Where plaintiff's decedent died in a rollover accident because the roof of the vehicle in which the decedent was a passenger collapsed, causing the decedent to die of positional asphyxia; plaintiff's expert witness inspected the vehicle, inspected the bare structural elements of the vehicle to assess how the elements performed in the crash, reviewed materials on the vehicle produced by defendant during discovery, including defendant's velocity analysis, and performed several independent analyses of the vehicle; the witness's testimony specifically related to the witness's investigation of the performance of the vehicle in the accident and was based on a review of defendant's rollover testing on the vehicle and the witness's testing of another vehicle with a rollover cage; and the witness explained the witness's understanding of vehicle design from specialized knowledge gained through education and employment, the district court did not abuse it discretion in permitting the expert to testify. Bustos v. Hyundai Motor Co., 2010-NMCA-090, 149 N.M. 1, 243 P.3d 440, cert. granted, 2010-NMCERT-010, 149 N.M. 64, 243 P.3d 1146. Offerable by defense or prosecution. - Relevant evidence and expert testimony are admissible, regardless of whether offered by the defendant or the prosecution. State v. Gallegos, 1978-NMCA-114, 92 N.M. 370, 588 P.2d 1045, cert. denied, 92 N.M. 353, 588 P.2d 554. Court cannot prevent defendant from calling expert because of nonexperts' testimony. - The trial court cannot properly prevent a defendant from calling experts in support of the defense on the basis that nonexperts have testified about the same issue. State v. Elliott, 1981-NMCA-111, 96 N.M. 798, 635 P.2d 1001. Determination of probative value and other relevant considerations relating to the admission of expert witness testimony left to the sound discretion of the trial judge. State v. Tafoya, 1980-NMSC-099, 94 N.M. 762, 617 P.2d 151. No error in refusing expert testimony where probative value slight. - The trial court does not err in refusing to admit the testimony of an expert as to the credibility of the victims of a sexual offense where the probative value of the testimony was slight, based upon the lack of personal observation by the expert. State v. Tafoya, 1980-NMSC-099, 94 N.M. 762, 617 P.2d 151. Court may take whole panorama into consideration and reject experts. - Although supreme court has held, in a case involving medical testimony, that uncontradicted evidence is conclusive upon the court as a trier of the facts, it was determined, considering the facts in case involving alleged deviation from architectural style provided for in restrictive covenant as to the evidence presented by the expert witnesses and the aesthetic nature of the issues, that the trier of the facts could take the whole panorama into consideration, including his own knowledge of the area. Consequently, in that cause the fact finder could reject expert opinion evidence. Gaskin v. Harris, 1971-NMSC-013, 82 N.M. 336, 481 P.2d 698. Court should allow expert to comment on lay opinion's validity. - Though the trial judge should probably have allowed defendant's expert to testify regarding the validity of lay opinion on defendant's mental condition, defendant was denied no substantial right, nor was he substantially harmed such that he was denied a fair trial, furthermore, the record clearly showed that the expert witness had an opportunity after the disallowed question to state the difficulty a lay person would have in forming a valid opinion as to defendant's mental condition. State v. Lujan, 1975-NMSC-017, 87 N.M. 400, 534 P.2d 1112, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 400 (1975). This rule does not restrict expert opinion testimony to "perceptions of the witness." State v. Ellis, 1976-NMCA-036, 89 N.M. 194, 548 P.2d 1212, cert. denied, 89 N.M. 206, 549 P.2d 284. "Never heard of it happening" testimony by expert is admissible. - The testimony of one witness, an official of the state of New Mexico with 20 years' experience in plumbing and gas installations, that he had never heard of a fire starting because of hot duct work igniting framework was found to be neither inadmissible or prejudicial by the appellate court. State Farm Fire & Cas. Co. v. Miller Metal Co., 1971-NMCA-177, 83 N.M. 516, 494 P.2d 178, writ quashed, 83 N.M. 740, 497 P.2d 742 (1972). Properly qualified expert may testify as to defendant's intent. State v. Ellis, 1976-NMCA-036, 89 N.M. 194, 548 P.2d 1212, cert. denied, 89 N.M. 206, 549 P.2d 284. An accident reconstructionist shown to be possessed of the education and experience necessary to form an opinion on the movement of bodies within a vehicle may properly be admitted to testify. State v. Vigil, 1985-NMCA-110, 103 N.M. 643, 711 P.2d 920. Testimony of duly qualified expert as to speed, based on skid marks, is admissible. Alford v. Drum, 1961-NMSC-048, 68 N.M. 298, 361 P.2d 451. Qualified person may testify as to a summary based upon his examination of complicated books of accounts and records. State v. Schrader, 1958-NMSC-056, 64 N.M. 100, 324 P.2d 1025. Medical expert's testimony held inadmissible for lack of foundation. - Where a medical expert testified concerning the decedent's chance of survival from fatal injuries after being struck by an automobile; the medical expert reviewed reports of the Office of the Medical Investigator and an ambulance supervisor concerning the external injuries suffered by the decedent and statements of decedent's friend about the decedent's condition following the accident; there was no internal autopsy or x-rays of the decedent; the medical expert did not have specific knowledge as to the cause of decedent's death or the conditions that led to death; and the medical expert was required to assume certain medical information to reach an opinion of decedent's chance of survival, the court did not abuse its discretion by declining the medical expert's testimony because it was speculative or conjectural. Zia Trust, Inc. v. Aragon, 2011-NMCA-076, 150 N.M. 354, 258 P.3d 1146, cert. denied, 2011-NMCERT-006. Where there was no foundation for the testimony that defendant had taken medication and alcohol on the night of the crime, a medical expert could not testify as to the particular effect of that combination on defendant as there was no evidence or fact in issue upon which the expert could offer an opinion. State v. Guzman, 1984-NMSC-016, 100 N.M. 756, 676 P.2d 1321, cert. denied, 467 U.S. 1256, 104 S. Ct. 3548, 82 L. Ed. 2d 851. Expert testimony that is not sufficiently tied to the facts of the case is inadmissible. - In a trial where plaintiff alleged medical negligence against defendant hospital, the trial court did not err in excluding expert testimony where the defense sought to admit a toxicologist's testimony that drugs in the decedent's system would have been contributing factors to the decedent's death, given an appropriate dose, but where the toxicologist's testimony lacked the necessary foundation as to dosage and drug interactions. An expert's opinion depends on its connection to the facts of the case, and where those facts require dosage data in order to render the expert's opinion relevant and helpful to the jury in resolving a factual dispute, the district court acts within its discretion to exclude testimony not based on such data. Christopherson v. St. Vincent Hosp., 2016-NMCA-097, cert. denied. Expert's opinion on witness' prior drug addiction excluded. - Trial court did not abuse its discretion in excluding testimony of defendant's expert witness about prior heroin addiction of state's witness where trial court found that the expert had not applied any particular psychological test with regard to state's witness, that the testimony would be highly prejudicial while having little probative value due to lack of clear connection between witness' prior addiction and her present ability to recall, and that evidence would not be helpful to jury. State v. Blea, 1984-NMSC-055, 101 N.M. 323, 681 P.2d 1100. Retrograde extrapolation evidence to determine a person's blood alcohol at an earlier time held not admissible under Alberico. State v. Hughey, 2005-NMCA-114, 138 N.M. 308, 119 P.3d 188, cert. granted, 2005-NMCERT-008. Reliability of scientific knowledge. - Currently, New Mexico law requires only that the trial court establish the reliability of scientific knowledge, and does not apply the Daubert-Alberico standard to all expert testimony. State v. Lente, 2005-NMCA-111, 138 N.M. 312, 119 P.3d 737, cert. denied, 2005-NMCERT-008. Admissibility of expert testimony under New Mexico law. - New Mexico has never adopted the Joiner rule that a judge may reject expert testimony where the "analytical gap" between the underlying evidence and the expert's conclusions is too great. Joiner is inconsistent with longstanding New Mexico law that leaves credibility determinations and weighing of the evidence to the trier of fact; any doubt regarding the admissibility of scientific evidence should be resolved in favor of admission, rather than exclusion. Acosta v. Shell W. Expl. & Prod., Inc., 2016-NMSC-012, rev'g 2013-NMCA-009, 293 P.3d 917. In a toxic tort case, where plaintiffs sued defendants for personal injuries resulting from defendants' dumping of toxic hydrocarbons in the ground where plaintiffs' houses were subsequently built, and where plaintiffs' expert witness conducted a study that included an analysis of plaintiffs' medical conditions through patient history, medical records, physical examinations and diagnostic testing, reviewed the scientific evidence related to general causation, relied on animal studies establishing that pristane, a toxic chemical found in crude oil, exposure in mice induces autoimmunity and lupus, and concluded that plaintiffs' inhalation, ingestion, and absorption of the combination of various toxins from defendants' oil and gas operations caused or aggravated plaintiffs' lupus and other autoimmune disorders, the district court erred when it determined that the expert's study and the proffered testimony would not assist the trier of fact in determining whether the chemical mixture at issue was capable of causing lupus or other autoimmune disorders. The expert's causation opinion, his study, and the animal studies it relied on support a valid scientific inference that is probative of causation, even if they do not conclusively establish that the specific chemicals at issue can cause lupus or other autoimmune disorders. The expert's study and his causation testimony were relevant and should have been admitted. Acosta v. Shell W. Expl. & Prod., Inc., 2016-NMSC-012, rev'g 2013-NMCA-009, 293 P.3d 917. Scientific evidence was not relevant to show causation. - Where, in a toxic tort case, plaintiffs sued defendants for personal injuries resulting from defendants' negligent disposition of toxic petrochemicals in the ground where plaintiffs' houses were subsequently built; plaintiffs offered the opinion testimony of an expert to establish that a mixture of three specific chemicals involved in plaintiffs' case can generally cause lupus and other autoimmune disorders; the expert's opinion was based on the expert's epidemiological study and upon other animal and human studies; the epidemiological study compared the differences in the incidence of certain medical ailments between plaintiffs and an unexposed group of California residents and determined that there was a potential association between the specific petrochemicals involved in plaintiffs' case and lupus; the epidemiological study did not show whether and at what levels the specific petrochemicals involved in plaintiffs' case would cause lupus or other autoimmune disorders; the witness failed to show why the results of the animal studies were meaningful to establish the effects the specific petrochemicals involved in plaintiffs' case would have on humans; none of the human studies dealt with the specific petrochemicals involved in plaintiffs' case; and the expert failed to provide information as to how and why the exposures in the human studies translated to plaintiffs, the district court did not abuse its discretion when it determined that, regardless of the reliability of the studies' methodology, the studies were not relevant to the expert's opinion as to general causation and that the expert could not base general causation opinions on the studies, because the studies did not establish the necessary casual nexus between the specific petrochemicals involved in plaintiffs' case and lupus and other autoimmune disorders. Acosta v. Shell W. Expl. & Prod., Inc., 2013-NMCA-009, 293 P.3d 917, cert. granted, 2012-NMCERT-012. Scientific knowledge was not reliable. - Where decedent's estate sued defendants for a toxic tort arising out of decedent's exposure to gasoline supplied or manufactured by defendants; plaintiff alleged that benzene in the gasoline caused decedent's death; decedent used gasoline for a period of 24 years to operate, clean and maintain equipment; the calculation of decedent's dermal absorption of benzene depended on the amount of time decedent's hands were immersed in gasoline; plaintiff's expert witness determined that decedent's hands were immersed in gasoline for 2.5 hours per week, 48 weeks per year during the 24 year period; defendants' expert witness calculated the dermal absorption of other compounds that are present in gasoline at greater concentrations than benzene and that are absorbed faster than benzene, and determined that based on the exposure to gasoline assumed by plaintiff's expert witness, decedent would have died from acute central nervous system toxicity due to the dermal absorption of the other toxic compounds in gasoline; and plaintiff did not discredit or explain the evidence of defendants' expert witness, the analysis of plaintiff's expert witness was unreliable and inadmissible. Andrews v. United States Steel Corp., 2011-NMCA-032, 149 N.M. 461, 250 P.3d 887. Opinion as to lost chance was not based on scientific knowledge. - Where plaintiff, who was a diabetic, stepped on a nail and went to the hospital's emergency room; the physician who treated defendant determined that antibiotics were not necessary; plaintiff's foot became infected, which resulted in the amputation of plaintiff's foot; plaintiff sued defendants for negligently failing to prescribe antibiotics; plaintiff's expert witness, who qualified to testify as to the standard of care required of an emergency room physician, testified that antibiotics should have been initiated in the initial course of treatment to reduce the potential for infection; and defendants argued that the witness' opinion on the efficacy of prophylactic antibiotics was unreliable because it had no support in science or medicine, the witness' causation opinion did not constitute scientific knowledge and was not subject to the Daubert-Alberico analysis because the witness' opinion was directed to whether the physician's failure to administer antibiotics in the emergency room reduced plaintiff's chance of a better recovery, not whether the administration of antibiotics would have prevented the subsequent infection. Quintana v. Acosta, 2014-NMCA-015, cert. denied, 2013-NMCERT-012. Physician's affidavit held not covered by physician-patient privilege. - Affidavit of physician who had previously treated plaintiff submitted in support of defendant's motion for partial summary judgment was properly obtained and submitted since testimony was not covered by physician-patient privilege. Trujillo v. Puro, 1984-NMCA-050, 101 N.M. 408, 683 P.2d 963. Testimony regarding voluminous records permitted without records being in court. - A qualified person may testify in regard to a summary of voluminous records which that person has examined without the necessity of requiring the records themselves to be in court. State v. Schrader, 1958-NMSC-056, 64 N.M. 100, 324 P.2d 1025. Auditor's testimony as an expert witness was admissible evidence, and the jury was at liberty to believe or disbelieve this testimony under the instructions of the court. State v. Peke, 1962-NMSC-033, 70 N.M. 108, 371 P.2d 226, cert. denied, 371 U.S. 924, 83 S. Ct. 293, 9 L. Ed. 2d 232 (1962). Evidence in a products liability case that plaintiff's car was defective based on experts' examination of the defective mechanism, together with a showing that plaintiffs' use was not improper, that the car went out of control, and that a broken axle caused the lack of control, exceeded the requisite standard of proof and presented sufficient evidence of a defect. Montoya v. GMC, 1975-NMCA-136, 88 N.M. 583, 544 P.2d 723, cert. denied, 89 N.M. 5, 546 P.2d 70. "Battered wife syndrome" term admissible. - Trial court should not have excluded, during a psychologist's testimony at defendant's trial for killing her ex-husband, use of the term "battered wife syndrome". State v. Gallegos, 1986-NMCA-004, 104 N.M. 247, 719 P.2d 1268. Expert opinion as to sexual harassment policy. - Where employer in sexual harassment action raised defense that it had an adequate sexual harassment policy in place, expert's testimony as to how an employer should enforce such a policy was relevant and admissible. Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, 127 N.M. 47, 976 P.2d 999. Mother's testimony as to symptoms of post-traumatic stress admissible. - In a prosecution for sexual penetration of a child, testimony of the child's mother that the child did not suffer symptoms typical of victims of sexual abuse provided an adequate foundation to support the relevance and helpfulness of an expert's testimony concerning common manifestations of post-traumatic stress disorder. State v. White, 1997-NMCA-059, 123 N.M. 510, 943 P.2d 544. Child abuse expert's testimony inadmissible. - Psychologist's testimony was extremely prejudicial and went beyond the permissible boundaries of Post Traumatic Stress Disorder testimony outlined in State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192, since the expert improperly commented upon the credibility of the complainant; the expert's naming of the perpetrator was tantamount to saying that complainant was telling the truth; and the expert testified that the victim's PTSD symptoms were in fact caused by sexual abuse. State v. Lucero, 1993-NMSC-064, 116 N.M. 450, 863 P.2d 1071. Testimony regarding the behavior of sexually abuse children. - Testimony about the behavior of sexually abused children must be admitted as expert testimony and not as lay witness testimony, because it is neither the kind of personal observation that a lay person is capable of making nor common knowledge within the general public. State v. Duran, 2015-NMCA-015. Where S.A.F.E. House interviewer testified that the majority of children she has interviewed delayed in disclosing sexual abuse, the testimony was based on specialized knowledge and not the type of testimony generally known by an ordinary citizen or the general public; trial court erred in admitting interviewer's testimony as lay witness testimony. State v. Duran, 2015-NMCA-015. Retrograde extrapolation of blood alcohol content. - A challenge to expert testimony about retrograde extrapolation as a means for calculating defendant's blood alcohol content at the time of driving based on defendant's blood alcohol content measured six hours after defendant ceased driving on the grounds that the expert did not account for variables that potentially impact absorption, goes to the weight of the expert's testimony rather than to its admissibility. State v. Downey, 2007-NMCA-046, 141 N.M. 455, 157 P.3d 20, cert. granted, 2007-NMCERT-004. Guiding principles. - The trial court's function is confined to an assessment of the reliability of the scientific technique underlying an expert's opinion, not the validity of the conclusions drawn by an expert employing that technique; any deficiencies of infirmities in the actual performance of a scientific test go to the weight of the evidence, not to its admissibility; and doubt regarding the admissibility of scientific evidence should be resolved in favor of admissibility. State v. Downey, 2007-NMCA-046, 141 N.M. 455, 157 P.3d 20, cert. granted, 2007-NMCERT-004. IV. MEDICAL EXPERTS. Use of medical testimony alone to support a criminal conviction. - Medical testimony to support causation in a criminal proceeding, as a matter of evidentiary foundation, should describe in detail the methodology utilized first to "rule-in" possible causes and then to "rule-out" all but one. Based on that process of elimination, described in detail to the jury, a doctor then should be able to offer an opinion on causation to a reasonable degree of medical probability which satisfies a minimum standard for admissibility. In a criminal trial, to meet a standard of proof beyond a reasonable doubt, prosecutors point to additional, non-opinion evidence, so that when considered cumulatively all the evidence is sufficient to support a verdict beyond a reasonable doubt. If, however, the prosecution is relying solely on medical opinion, it must go beyond the mere probable causation required for admissibility. The medical testimony should establish why the expert opinions are sufficient in themselves to establish guilt beyond a reasonable doubt. State v. Consaul, 2014-NMSC-030. Insufficient evidence of intentional child abuse based on medical testimony as to a "likely" cause. - Where defendant, who was responsible for watching the child and who was frustrated and irritated by the child's crying, bundled the child in a blanket tighter than usual and put the child face down on a pillow in the crib; the child became ill, was taken to a hospital, and died from an injury to the brain caused by lack of oxygen to the brain; the State's theory was that defendant intentionally suffocated the child; the expert medical testimony provided the only evidence that the child may have been suffocated and that the child had not been injured by other, noncriminal causes; and the State's medical experts testified that they suspected child abuse, that they could not rule out child abuse, and that they could not think of other explanations for the child's injuries, that child abuse was a likely cause, and that the child was likely suffocated, the evidence was insufficient to establish beyond a reasonable doubt that defendant intentionally suffocated the child. State v. Consaul, 2014-NMSC-030. Testimony as to external cause of disease. - The determination of a disease that is the cause of a patient's symptoms, which might be determined by applying a differential diagnosis, is distinct from the determination of the external cause of the disease itself, which requires a rigorous scientific analysis of the various external agents that might have caused the disease. Although a treating physician is qualified to give an opinion regarding the physician's diagnosis of the disease causing the patient's symptoms, the treating physician is not automatically qualified to testify as to the external agent that caused the patient's disease. Parkhill v. Alderman-Cave Milling & Grain Co. of N.M., 2010-NMCA-110, 149 N.M. 140, 245 P.3d 585, cert. granted, 2010-NMCERT-012, 150 N.M. 492, 263 P.3d 269. Where plaintiffs purchased horse feed that contained monensin, an antibiotic that is toxic to horses; plaintiffs alleged that they became ill as a result of being exposed to the feed; and plaintiffs' treating physician had no specific training in toxicology, was not an expert in toxicology, had not heard of monensin prior to meeting plaintiffs, did not know what constituted a minimum harmful dose for a human being or an animal, did not consult with any experts on the subject of monensin, and offered an opinion exclusively on the physician's examination of plaintiffs and the physician's own research, the trial court did not abuse its discretion in ruling that testimony as to the external causation of plaintiffs' symptoms required specific scientific knowledge and that the treating physician was not qualified to render a reliable opinion as to whether monensin was the external cause of plaintiffs' symptoms. Parkhill v. Alderman-Cave Milling & Grain Co. of N.M., 2010-NMCA-110, 149 N.M. 140, 245 P.3d 585, cert. granted, 2010-NMCERT-012, 150 N.M. 492, 263 P.3d 269. Where plaintiffs purchased horse feed that contained monensin, an antibiotic that is toxic to horses; plaintiffs alleged that they became ill as a result of being exposed to the feed; and plaintiffs' medical expert, who specialized in internal medicine, was not familiar with monensin and the manner in which it is used and handled in the industry, stated that the dosage received by plaintiffs was critical in determining whether exposure to monensin could have caused plaintiffs' symptoms, did not attempt to quantify the dose of monensin received by plaintiffs, and did not state that it was not possible to quantify the dose to which plaintiffs had been exposed, the district court did not abuse its discretion when it excluded the expert's testimony as unreliable under the standard for scientific evidence. Parkhill v. Alderman-Cave Milling & Grain Co. of N.M., 2010-NMCA-110, 149 N.M. 140, 245 P.3d 585, cert. granted, 2010-NMCERT-012, 150 N.M. 492, 263 P.3d 269. Opinion as to cause of death. - Where defendant was charged with first-degree abuse of a child resulting in death; the child died without any physical signs of trauma; defendant confessed to suffocating the child with a blanket; a medical expert testified that the cause of the child's death was consistent with smothering; and the medical expert consulted the child's medical record, the autopsy report, defendant's confession, and the police report, the trial court did not abuse its discretion when it determined that the medical expert's opinion was relevant, reliable, and helpful to the jury. State v. Wilson, 2011-NMSC-001, 149 N.M. 273, 248 P.3d 315. Post-traumatic stress disorder. - Where state's experts gave opinions that minor victims of sexual abuse suffered from post-traumatic stress disorder diagnoses and testified that the basis for the diagnoses were consistent with the standard American Psychiatric Association's "Diagnostic & Statistical Manual of Mental Disorders" criteria for post-traumatic stress disorder and were consistent with sexual abuse, the testimony was admissible even though the opinions were formed for therapeutic, clinical and treatment diagnosis in which the standard method of psychological evaluation requires a degree of reliance upon self-reporting as well as a professional assumption that the victims responded truthfully to clinical inquires. State v. Paiz, 2006-NMCA-144, 140 N.M. 815, 149 P.3d 579, cert. denied, 2006-NMCERT-011. Qualifications of medical expert are dependent on the type of negligence claimed and the medical complexity involved. Lopez v. Reddy, 2005-NMCA-054, 137 N.M. 554, 113 P.3d 377. Breast biopsy. - Where medical expert's qualifications would allow him to testify on a number of subjects, there is no abuse of discretion in determining that he lacked the qualifications to testify as to the standard of care applicable to physician in performing a breast biopsy where expert's experience with biopsies were based on his residency more than 30 years ago and his training concerning the standard of care for biopsies is therefore three decades old, defendant presented evidence that medical science and surgical techniques have changed since that time, and expert presented no evidence showing that he has kept up with these advances or that advances in the area of biopsies had not subsequently changed that standard of care and expert's expertise is in internal medicine, hematology, and oncology, and his review of surgical procedures is limited to those performed by surgeons on his cancer patients and plaintiff was not a cancer patient, and there was no evidence that the tissue removed was cancerous. Lopez v. Reddy, 2005-NMCA-054, 137 N.M. 554, 113 P.3d 377. Medical testimony, like other expert evidence, is intended to aid but not to conclude the trier of the facts in determining the extent of disability. Lucero v. Los Alamos Constructors, Inc., 1969-NMCA-005, 79 N.M. 789, 450 P.2d 198. Weight given medical expert's testimony for trier of facts. - Once a medical witness has qualified to give an expert medical opinion upon a particular issue, the weight, if any, to be given his opinion on this issue, and the resolution of conflicts between his opinion and the opinions of other medical experts on the issue, are for the trier of the facts. Wood v. Citizens Std. Life Ins. Co., 1971 -NMSC-011, 82 N.M. 271, 480 P.2d 161. Opinion of treating physician as to negligence of another treating physician. - Where decedent died when decedent developed a heart arrhythmia during surgery in 2005; the heart arrhythmia was caused by an undiagnosed condition called pheochromocytoma; prior to surgery, decedent's consulting surgeon ordered lab tests that would have disclosed the pheochromocytoma; the consulting surgeon scheduled surgery to be conducted by the operating surgeon; the operating surgeon conducted the surgery before the lab results had been received and despite decedent's high potassium levels that posed a chance of death during surgery; and plaintiff sought to elicit opinions from the consulting surgeon as to which acts of the operating surgeon were negligent; the district court did not abuse its discretion in excluding the consulting surgeon's opinions as to the operating surgeon's negligence. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005. Trier of facts resolving conflicts even between medical expert's opinions. - It was for the trial court, as the trier of the facts, and not for the supreme court, to determine the credibility of the witnesses, the weight to be given their respective testimonies, and wherein the truth lay, and that the witnesses upon whose credibility the trial court was required to pass were medical experts, and that the differences and conflicts to be resolved arose out of their medical opinions as to the causes and nature of plaintiff's disabling condition, does not alter the rule. Wood v. Citizens Std. Life Ins. Co., 1971 -NMSC-011, 82 N.M. 271, 480 P.2d 161. Fact that doctor not specialist goes to weight, not admissibility. - Testimony from a general practitioner although not a specialist does not go to the admissibility of the evidence elicited from him nor to its sufficiency to support a finding based thereon, but rather to the weight to be accorded it. Frederick v. Younger Van Lines, 1964-NMSC-156, 74 N.M. 320, 393 P.2d 438. Expert testimony establishes liability and causal connection in malpractice case. - Facts to establish liability in a malpractice case must generally be established by expert testimony. Likewise, expert testimony is generally required to establish causal connection. Sanders v. Smith, 1972-NMCA-016, 83 N.M. 706, 496 P.2d 1102, cert. denied, 83 N.M. 698, 496 P.2d 1094. Experts must determine whether doctor's performance within recognized medical standards. - Expert testimony is generally necessary to prove whether or not the doctor's handling of the case was within recognized standards of medical practice in the community. Crouch v. Most, 1967-NMSC-216, 78 N.M. 406, 432 P.2d 250. Question of whether or not doctor's treatment was within an accepted medical standard was a factual question requiring special scientific knowledge that could best be answered by the expert witnesses and did not constitute a request for an opinion on the ultimate issue. Crouch v. Most, 1967-NMSC-216, 78 N.M. 406, 432 P.2d 250. Fundamental techniques more determinative than local practices. - It would make no difference whether a surgeon had personal knowledge concerning local practice if fundamental techniques, applicable no matter where the doctor practices, would apply to the locality involved in the lawsuit. Griego v. Grieco, 1977-NMCA-018, 90 N.M. 174, 561 P.2d 36. Psychologist's testimony admissible. - It was not plain error under this rule to admit a psychologist's testimony, based on a statement attributed to defendant by a witness to whom he confessed his crimes, about the relationship between dissociative experiences and the capacity to form a deliberate intent. State v. Allen, 2000-NMSC-002, 128 N.M. 482, 994 P.2d 728, cert. denied, 530 U.S. 1218, 120 S. Ct. 2225, 147 L. Ed. 2d 256 (2000). Testimony as to widespread fundamental procedures indicates local practices considered. - Testimony of several doctors that the diagnosis of abdominal injuries was taught in medical schools for many, many years, and was of long standing, that the method of diagnosis did not vary from town to town in New Mexico, and that diagnostic tests and examinations would be the same in any community in New Mexico shows that the doctors gave due consideration to the locality involved, and they were qualified to testify whether defendant followed the standard of care and skill required of physicians in examining, diagnosing and treating a patient suffering from blunt trauma to the abdomen to determine whether an intraabdominal injury was present. Griego v. Grieco, 1977-NMCA-018, 90 N.M. 174, 561 P.2d 36. Expert's opinion fails to raise issue if method not generally known. - In a malpractice case, testimony of a medical doctor, a professor at the University of New Mexico medical school and a highly qualified surgeon, that he would have inserted a cantor tube in a different fashion failed to raise a genuine issue as to negligence on the part of the defendant doctor, an osteopathic surgeon, since there was no evidence that he knew or should have known about the procedure used by the witness and the record was completely void of any testimony that the technique was taught in osteopathic schools or seminars, was the subject of any medical literature or texts, or was in general use by osteopathic surgeons in the area or at any other place; there was literally no evidence of deviation from a recognized standard of osteopathic practice, and no showing at all that the defendant's action or failure to act was the proximate cause of any injury to the deceased. Becker v. Hidalgo, 1976-NMSC-067, 89 N.M. 627, 556 P.2d 35. Purpose of medical opinion as to percentage of disability is to assist the trier of the facts in arriving at a correct determination of the extent of claimant's disability, and a percentage opinion may be disregarded if there is other competent evidence to support the award. Lucero v. Los Alamos Constructors, Inc., 1969-NMCA-005, 79 N.M. 789, 450 P.2d 198. Only medical expert can testify on physical condition's cause and effect. - The cause and effect of a physical condition lies in a field of knowledge in which only a medical expert can give a competent opinion. Woods v. Brumlop, 1962-NMSC-133, 71 N.M. 221, 377 P.2d 520. Psychiatrist testifies on mental state and not specific facts. - Prior to enactment of rules of evidence, defendant's contention of inadmissibility of psychiatrist's testimony concerning the veracity of the defendant in claiming a loss of memory was without merit where psychiatrist testified as to the mental state of the defendant as it concerned his alleged loss of memory, not as to specifics related to him by the defendant concerning the alleged circumstances. State v. Vaughn, 1971-NMSC-015, 82 N.M. 310, 481 P.2d 98, cert. denied, 403 U.S. 933, 91 S. Ct. 2262, 29 L. Ed. 2d 712 (1971). Expert medical opinion partly based upon out-of-court statements inadmissible. - The opinion of a medical expert as to the sanity of a defendant in a criminal proceeding based partly upon the statements of third persons out of court is generally considered inadmissible. State v. Chambers, 1972-NMSC-069, 84 N.M. 309, 502 P.2d 999. Testimony concerning the general characteristics of sexually abused children is not limited to testimony from a psychologist or psychiatrist. State v. Newman, 1989-NMCA-086, 109 N.M. 263, 784 P.2d 1006. Child therapist who held no certification in any state and had never been qualified to testify in any court of any jurisdiction, although she had testified at administrative hearings, could testify on the general characteristics observed in child abuse victims, where her academic credentials included a bachelor's degree in sociology and master's degree in guidance and counseling, and she had worked approximately four years as a counselor and therapist in sexual abuse and other cases. State v. Newman, 1989-NMCA-086, 109 N.M. 263, 784 P.2d 1006. Findings by physician which were consistent with victim's report does not constitute the type of expert opinion based on scientific, technical, or other expert knowledge that triggers a reliability hearing. State v. Lente, 2005-NMCA-111, 138 N.M. 312, 119 P.3d 737, cert. denied, 2005-NMCERT-008. Workers' compensation cases. - The Alberico/Daubert standard for the admissibility of expert testimony does not apply to the testimony of a health care provider pursuant to Section 52-1-28(B) or 52-3-32 NMSA 1978. Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, 134 N.M. 421, 77 P.3d 1014. A treating physician's testimony is based more on "experience and training" than on the kind of scientific knowledge to which New Mexico courts apply the Daubert/Alberico standard. Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, 134 N.M. 421, 77 P.3d 1014. Law reviews. - For article, "The Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence," see 6 N.M.L. Rev. 187 (1976). For note, "Lie Detector Evidence - New Mexico Court of Appeals Holds Voice-Stress Lie Detector Evidence Conditionally Admissible: Simon Neustadt Family Center, Inc. v. Bludworth," see 13 N.M.L. Rev. 703 (1983). For case note, "Workers' Compensation Law: A Clinical Psychologist Is Qualified to Give Expert Medical Testimony Regarding Causation: Madrid v. University of California, d/b/a Los Alamos National Laboratory," see 18 N.M.L. Rev. 637 (1988). For note, "New Mexico Accepts Forensic DNA Evidence Under Rule of Evidence 11-702: State v. Anderson," see 25 N.M.L. Rev. 283 (1995). For note, "The Admission of Polymerase Chain Reaction DNA Evidence in New Mexico - State v. Sills," see 29 N.M.L. Rev. 429 (1999). Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 751; 31A Am. Jur. 2d Expert and Opinion Evidence § 1 et seq. Proof of identity of person or thing where object, specimen or part is taken from a human body, as basis for admission of testimony or report of expert or officer based on such object, specimen, or part, 21 A.L.R.2d 1216. Expert evidence to identify gun from which bullet or cartridge was fired, 26 A.L.R.2d 892. Necessity of expert testimony to show causal connection between medical treatment necessitated by injury for which defendant is liable and allegedly harmful effects of such treatment, 27 A.L.R.2d 1263. Cross-examination of expert witness as to fees, compensation, and the like, 33 A.L.R.2d 1170. Admissibility of opinion of medical expert as affected by his having heard the person in question give the history of his case, 51 A.L.R.2d 1051. Chiropractor's competency as expert in personal injury action as to injured person's condition, medical requirements, nature and extent of injury, and the like, 52 A.L.R.2d 1384. Party litigant in civil personal injury or death case as bound by conflicting testimony of his own medical witnesses, 53 A.L.R.2d 1229. Admissibility, in homicide prosecution, of opinion evidence that death was or was not self-inflicted, 56 A.L.R.2d 1447. Right of physician, notwithstanding physician-patient privilege, to give expert testimony based on hypothetical question, 64 A.L.R.2d 1056. Admissibility of opinion evidence as to point of impact or collision in motor vehicle accident case, 66 A.L.R.2d 1048. Admissibility of opinion evidence as to cause of death, disease, or injury, 66 A.L.R.2d 1082. Qualification as expert to testify as to findings or results of scientific test to determine alcoholic content of blood, 77 A.L.R.2d 971. Compelling expert to testify, 77 A.L.R.2d 1182, 66 A.L.R.4th 213. Qualification of nonmedical psychologist to testify as to mental condition or competency, 78 A.L.R.2d 919. Expert and opinion evidence as to cause or origin of fire, 88 A.L.R.2d 230. Right to elicit expert testimony from adverse party called as witness, 88 A.L.R.2d 1186. Expert or opinion evidence as to speed based on appearance or condition of motor vehicle after accident, 93 A.L.R.2d 287. Admissibility, in civil case, of expert or opinion evidence as to proposed witness' inability to testify, 11 A.L.R.3d 1360. Necessity and admissibility of expert testimony as to credibility of witness, 20 A.L.R.3d 684. Opinion testimony as to speed of motor vehicle based on skid marks and other facts, 29 A.L.R.3d 248. Locality rule as governing hospital's standard of care to patient and expert's competency to testify thereto, 36 A.L.R.3d 440. Malpractice testimony: competency of physician or surgeon from one locality to testify, in malpractice case, as to standard of care required of defendant practicing in another locality, 37 A.L.R.3d 420. Necessity of expert evidence to support action against hospital for injury to or death of patient, 40 A.L.R.3d 515. Necessity and sufficiency of expert evidence to establish existence and extent of physician's duty to inform patient of risks of proposed treatment, 52 A.L.R.3d 1084. Admissibility of opinion evidence as to employability on issue of disability in health and accident insurance and workers' compensation cases, 89 A.L.R.3d 783. Competency of drug addict or user to identify suspect material as narcotic or controlled substance, 95 A.L.R.3d 978. Admissibility and weight of voiceprint evidence, 97 A.L.R.3d 294. Admissibility of expert medical testimony on battered child syndrome, 98 A.L.R.3d 306. Admissibility of social worker's expert testimony on child custody issues, 1 A.L.R.4th 837. Admissibility, in criminal case, of results of residue detection test to determine whether accused or victim handled or fired gun, 1 A.L.R.4th 1072. Necessity of expert testimony to show malpractice of architect, 3 A.L.R.4th 1023. Products liability: admissibility of expert or opinion evidence that product is or is not defective, dangerous, or unreasonably dangerous, 4 A.L.R.4th 651. Admissibility and necessity of expert evidence as to standards of practice and negligence in malpractice action against attorney, 14 A.L.R.4th 170. Admissibility of expert testimony as to whether accused had specific intent necessary for conviction, 16 A.L.R.4th 666. Admissibility of expert or opinion testimony on battered wife or battered woman syndrome, 18 A.L.R.4th 1153. Admissibility of expert or opinion testimony concerning identification of skeletal remains, 18 A.L.R.4th 1294. Admissibility and weight, in criminal case, of expert or scientific evidence respecting characteristics and identification of human hair, 23 A.L.R.4th 1199. Admissibility and weight of extrajudicial or pretrial identification where witness was unable or failed to make in-court identification, 29 A.L.R.4th 104. Admissibility of testimony that bullet could or might have come from particular gun, 31 A.L.R.4th 486. Admissibility of expert testimony as to modus operandi of crime - modern cases, 31 A.L.R.4th 798. Propriety of cross-examining expert witness regarding his status as "professional witness," 39 A.L.R.4th 742. Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203. Admissibility of bare footprint evidence, 45 A.L.R.4th 1178. Admissibility, at criminal prosecution, of expert testimony on reliability of eyewitness testimony, 46 A.L.R.4th 1047. Admissibility of expert testimony as to appropriate punishment for convicted defendant, 47 A.L.R.4th 1069. Admissibility of voice stress evaluation test results or of statements made during test, 47 A.L.R.4th 1202. Right of independent expert to refuse to testify as to expert opinion, 50 A.L.R.4th 680. Necessity of expert testimony to show standard of care in negligence action against insurance agent or broker, 52 A.L.R.4th 1232. Thermographic tests: admissibility of test results in personal injury suits, 56 A.L.R.4th 1105. Compelling testimony of opponent's expert in state court, 66 A.L.R.4th 213. Admissibility, in criminal cases, of evidence of electrophoresis of dried evidentiary bloodstains, 66 A.L.R.4th 588. Admissibility of expert testimony that item of clothing or footgear belonged to, or was worn by, particular individual, 71 A.L.R.4th 1148. Admissibility of hypnotically refreshed or enhanced testimony, 77 A.L.R.4th 927. Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute - state cases, 83 A.L.R.4th 629. Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 A.L.R.4th 660. Admissibility, in criminal prosecution, of expert opinion evidence as to "blood splatter" interpretation, 9 A.L.R.5th 369. Propriety of questioning expert witness regarding specific incidents or allegations of expert's unprofessional conduct or professional negligence, 11 A.L.R.5th 1. Cautionary instructions to jury as to reliability of, or factors to be considered in evaluating, voice identification testimony, 17 A.L.R.5th 851. Necessity of expert testimony on issue of permanence of injury and future pain and suffering, 20 A.L.R.5th 1. Admissibility of evidence of voice identification of defendant as affected by allegedly suggestive voice lineup peocedures, 55 A.L.R.5th 423. Admissibility of expert testimony concerning domestic-violence syndromes to assist jury in evaluating victim's testimony or behavior, 57 A.L.R. 5th 315. Admissibility of expert testimony regarding questions of domestic law, 66 A.L.R.5th 135. Admissibility of expert testimony as to susceptibility of defendant to inducement for purpose of establishing entrapment defense, 70 A.L.R.5th 491. Admissibility of expert testimony regarding credibility of confession, 73 A.L.R.5th 581. Admissibility of results of presumptive tests indicating presence of blood on object, 82 A.L.R.5th 67. Admissibility of expert testimony regarding reliability of accused's confession where accused allegedly suffered from mental disorder or defect at time of confession, 82 A.L.R.5th 591. Admissibility of expert and opinion evidence as to cause or origin of fire - modern civil cases, 84 A.L.R.5th 69. Admissibility of expert and opinion evidence as to cause or origin of fire in criminal prosecution for arson or related offense - modern cases, 85 A.L.R.5th 187. Admissibility of expert testimony on child sexual abuse accommodation syndrome (CSAAS) in criminal case, 85 A.L.R.5th 595. Admissibility of expert testimony as to proper techniques for interviewing children or evaluating techniques employed in particular case, 87 A.L.R.5th 693. Post-Daubert standards for admissibility of scientific and other expert evidence in state courts, 90 A.L.R.5th 453. Admissibility and weight of voice spectrographic analysis evidence, 95 A.L.R.5th 471. Necessity and admissibility, in federal trial, of expert or opinion testimony regarding use or reliability of hypnotically refreshed recollections, 50 A.L.R. Fed. 602. When will expert testimony "assist trier of fact" so as to be admissible at federal trial under Rule 702 of Federal Rules of Evidence, 75 A.L.R. Fed. 461. Use of expert evidence and analytic dissection in determining substantial similarity between computer programs in copyright infringement litigation, 119 A.L.R. Fed. 489. Admissibility of expert or opinion evidence - Supreme court cases, 177 A.L.R. Fed. 77. 23 C.J.S. Criminal Law § 1050 et seq.; 32 C.J.S. Evidence §§ 513, 528 et seq.