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Hemsley v. Langdon

Supreme Court of Nebraska

March 30, 2018

Douglas L. Hemsley, Special Administrator of the Estate of Paul H. Hemsley, deceased, appellant,
v.
Thomas J. Langdon, M.D., et al., appellees.

         1. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews the record de novo to determine whether a trial court has abdicated its gatekeeping function under Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).

         2. ___: ___: ___. When the trial court has not abdicated its gatekeeping function under Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862');">631 N.W.2d 862 (2001), an appellate court reviews the trial court's decision to admit or exclude the evidence for an abuse of discretion.

         3. Motions for New Trial: Appeal and Error. An appellate court reviews a denial of a motion for new trial or, in the alternative, to alter or amend the judgment, for an abuse of discretion.

         4. Judges: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

         5. Expert Witnesses: Appeal and Error. The standard for reviewing the admissibility of expert testimony is abuse of discretion.

         6. Judgments: Verdicts. On a motion for judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all the relevant evidence admitted that is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences deducible from the relevant evidence.

         7. ___: ___. To sustain a motion for judgment notwithstanding the verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion.

         [299 Neb. 465] 8. Trial: Pretrial Procedure: Evidence: Appeal and Error. When a motion in limine to exclude evidence is overruled, the movant must object when the particular evidence which was sought to be excluded by the motion is offered during trial to preserve error for appeal.

         9. Malpractice: Expert Witnesses: Proof. As a general matter, expert testimony is required to identify the applicable standard of care.

         10. Courts: Expert Witnesses. Under the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), framework, the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion. This entails a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue.

         11. Expert Witnesses. The standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), require proof of the scientific validity of principles and methodology utilized by an expert in arriving at an opinion in order to establish the evidentiary relevance and reliability of that opinion.

         12. Trial: Expert Witnesses: Intent. The purpose of the gatekeeping function is to ensure that the courtroom door remains closed to "junk science" that might unduly influence the jury, while admitting reliable expert testimony that will assist the trier of fact.

         13. Trial: Expert Witnesses. In evaluating the validity of scientific testimony, a trial court considers a number of factors. These include (1) whether the theory or technique can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error, and the existence and maintenance of standards controlling the technique's operation; and (4) the "general acceptance" of the theory or technique.

         14. Trial: Rules of Evidence: Expert Witnesses. In making the preliminary assessment of validity and applicability regarding the admissibility of expert opinion evidence, the trial judge has the discretion both to avoid unnecessary Neb. Rev. Stat. § 27-104 (Reissue 2016) hearings, where the reliability of an expert's methods is stipulated to or properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases, where cause for questioning the expert's reliability arises.

         15. Trial: Expert Witnesses: Records: Appeal and Error. A trial court adequately demonstrates that it has performed its gatekeeping duty when the record shows (1) the court's conclusion whether the expert's opinion [299 Neb. 466] is admissible and (2) the reasoning the court used to reach that conclusion, specifically noting the factors bearing on reliability that the court relied on in reaching its determination.

         16. Motions for New Trial: Appeal and Error. A motion for new trial is to be granted only when error prejudicial to the rights of the unsuccessful party has occurred.

          Appeal from the District Court for Douglas County: James T. Gleason, Judge. Affirmed.

          Greg Garland, of Greg Garland Law, Kathy Pate Knickrehm, Tara DeCamp, of DeCamp Law, PC, L.L.O., and Todd E. Frazier, of Frazier Law Offices, P.C., for appellant.

          David A. Blagg, of Cassem, Tierney, Adams, Gotch & Douglas, and David D. Ernst, of Pansing, Hogan, Ernst & Bachman, L.L.P, for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          PER CURIAM.

         I. INTRODUCTION

         The special administrator of the estate of Paul H. Hemsley, deceased (the Estate), brought a medical negligence action against Thomas J. Langdon, M.D.; John T. Batter, M.D.; and Omaha Thoracic and Cardiovascular Surgery, PC. (collectively the doctors), claiming they were negligent in the rendering of medical care and treatment to Hemsley. Prior to trial, the court overruled the Estate's motion to exclude and motion in limine regarding the testimony of the doctors' expert witnesses. At a jury trial, the district court admitted, over the Estate's objections, testimony by several expert witnesses that Langdon and Batter met the standard of care. The jury found for the doctors. The Estate appeals. We affirm.

         II. BACKGROUND

         On September 22, 2011, Langdon performed a coronary artery bypass on Hemsley, a 67-year-old male. During the [299 Neb. 467] procedure, Langdon placed a chest tube into Hemsley's anterior mediastinum to monitor any postoperative internal bleeding and to drain blood and serum from under the breastbone. Langdon concluded the procedure, and Hemsley remained at the hospital to recover.

         On September 25, 2011, a nurse notified Batter, the physician on duty, that fecal material was "oozing" from Hemsley's chest incision and that he was feverish. Hemsley was transferred to the intensive care unit with a temperature of 104.9 degrees. Batter called in another surgeon and "the heart team'' to operate on Hemsley.

         During the second operation, it became apparent that Hemsley had sustained a transverse colon injury. The physicians repaired the colon and irrigated the abdomen to remove the stool present. Batter saw stool in the abdomen, but "not a lot." Batter and the team "observed that there was no evidence that any stool had gotten up from where the hole [in the colon] was underneath the rib cage or into any tract that was there." As a result, Batter decided not to open Hemsley's mediastinum to irrigate that area for possible stool.

         On September 30, 2011, Hemsley was transferred out of the intensive care unit. The next day, he became restless, confused, hypotensive, hypoxemic, and unresponsive and later died as a result of acute respiratory failure due to or as a consequence of peritonitis and of sepsis due to or as a consequence of coronary artery disease.

         On September 19, 2013, the Estate filed a complaint against the doctors. In its complaint, the Estate asserted a medical malpractice claim under the Nebraska Hospital-Medical Liability Act, Neb. Rev. Stat. §§ 44-2801 to 44-2855 (Reissue 2010). The Estate argued that due to Langdon's and Batter's professional negligence, the Estate was entitled to predeath damages, wrongful death damages, and funeral expenses.

         The Estate subsequently filed a motion in limine and a motion to exclude the testimony of the doctors' expert witnesses. At the pretrial hearing, the Estate argued that "the [299 Neb. 468] Court has ... no information before it on what methodologies [the doctors' expert witnesses] used nor how they applied them nor how did they arrive at a logical conclusion.'' The Estate further argued that the expert witnesses testified "about education, training, and experience, " but that under federal and state case law (DaubertlSchafersman), [1] "[t]hey still must disclose the methodologies and . . . the reasoning that they used."

         The district court filed an order reserving ruling on the Estate's motion in limine and overruling the Estate's motion to exclude testimony, stating that the expert opinions were not of the kind that would be subject to a DaubertlSchafersman test. The court eventually overruled the Estate's motion in limine regarding the doctors' methodologies, which was essentially a reassertion of the arguments presented in the motion to exclude.

         A jury trial was held. At trial, the Estate called as a witness a cardiac surgeon who testified that he found a breach of the standard of care by Langdon. The surgeon stated that "at a 99 percent certainty level, the injury was made by the clamp when it was passed into the chest." He testified that the malpractice by Langdon was "the inciting event that led to [Hemsley's] death." At the conclusion of its case in chief, the Estate renewed its pretrial Schafersman motions.

         At trial, the defense offered the testimony of Langdon, Batter, and another cardiothoracic surgeon on the standard of care. The Estate objected and renewed its Schafersman motions when each witness was questioned on the standard of care. The court overruled the motions.

         Langdon, the cardiothoracic surgeon who performed the initial surgery, testified that he met the applicable standard of care and did not pierce Hemsley's colon with the clamp during [299 Neb. 469] the surgery. Langdon contended there were three possibilities as to how Hemsley's transverse colon was injured: First, the "transverse colon wall was weakened" from a previous surgery and the "clamp skinned it or nicked it ... or just the outside of it, enough to give it a weakness." Second, when Langdon opened Hemsley's chest, "there was enough force on that if the colon was scarred to the back of the abdominal wall ... the serosa of the colon . . . may have partially torn . . . and weakened it." Third, "the tube was immediately adjacent to [the colon] and putting pressure on that part of the colon, " which weakened the lining of the colon.

         Batter, the cardiothoracic surgeon who performed the second surgery, to irrigate out the contamination, also testified that he met the standard of care. Finally, the other cardiothoracic surgeon testified as an expert witness that Langdon and Batter "very clearly met the standard of care in this case."

         A jury found in favor of the doctors. The Estate's post-trial motions for new trial, for judgment notwithstanding the verdict, to strike the opinions of defense's expert witnesses, and to alter or amend the judgment were overruled. The Estate appeals.

         III. ASSIGNMENTS OF ERROR

         The Estate assigns that the district court erred in (1) failing to properly perform its gatekeeping function under Daubertl Schafersman by overruling the Estate's motion in limine and motion to exclude the expert testimony regarding medical opinions and methodologies used and applied by the doctors' experts and (2) overruling the Estate's posttrial motions, which were based on the improper admission of the doctors' expert testimony that had been subject to the Estate's motion in limine, motion to exclude, and objection at trial based on the DaubertlSchafersman requirements.

         IV. STANDARD OF REVIEW

         An appellate court reviews the record de novo to determine whether a trial court has abdicated its Schafersman [299 Neb. 470] gatekeeping function.[2] When the trial court has not abdicated its Schafersman gatekeeping function, an appellate court reviews the trial court's decision to admit or exclude the evidence for an abuse of discretion.[3]

         One issue on appeal asks whether standard of review expert testimony is subject to DaubertlSchafersman. We review that question de novo. If we conclude that it is, then we review the facts for an abuse of discretion.

         An appellate court reviews a denial of a motion for new trial or, in the alternative, to alter or amend the judgment, for an abuse of discretion.[4] A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a ...


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