Trial: Expert Witnesses: Appeal and Error.
An appellate court reviews de novo whether the trial court
applied the correct legal standards for admitting an
__:__:__. 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.
Judgments: Words and Phrases. An abuse of
discretion occurs when a trial court's decision is based
upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and
Summary Judgment: Appeal and Error. An
appellate court will affirm a lower court's grant of
summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter
Trial: Expert Witnesses. Under the framework
established by 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');">631 N.W.2d 862 (2001), if an expert's opinion
involves scientific or specialized knowledge, a trial court
must determine whether the reasoning or methodology
underlying the testimony is valid (reliable). It must also
determine whether that reasoning or methodology can be
properly applied to the facts in issue.
__:__. A trial court can consider several nonexclusive
factors in determining the reliability of an expert's
opinion: (1) whether a theory [300 Neb. 48] or technique can
be (and has been) tested; (2) whether it has been subjected
to peer review and publication; (3) whether, in respect to a
particular technique, there is a high known or potential rate
of error; (4) whether there are standards controlling the
technique's operation; and (5) whether the theory or
technique enjoys general acceptance within a relevant
Expert Witnesses. Absent evidence that an
expert's testimony grows out of the expert's own
prelitigation research or that an expert's research has
been subjected to peer review, experts must show that they
reached their opinions by following an accepted method or
procedure as it is practiced by others in their field.
Courts: Expert Witnesses. The objective of
the trial court's gatekeeping responsibility is to make
certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant
Evidence: Proof. Failure of proof concerning
an essential element of the nonmoving party's case
necessarily renders all other facts immaterial.
from the District Court for Douglas County: Leigh Ann
Jeffrey A. Silver, and Walter G. Campbell, Jr., and Noreek
Davitian, of Krupnick, Campbell, Malone, Buser, Slama,
Hancock & Liberman, P.A., and Michael D. Hook, of Hook,
Bolton, Mitchell, Kirkland & McGhee, P.A., for appellant.
Vinjamuri Gettman, of Gettman & Mills, L.L.P., Michael X.
Imbroscio and Paul W. Schmidt, of Covington & Burling,
L.L.P, and Colleen M. Hennessey, of Peabody & Arnold,
L.L.P, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.,
and Riedmann, Judge, and Martinez, District Judge.
product liability action, the district court excluded the
claimant's expert's testimony regarding causation.
Summary judgment for the manufacturer and distributor
followed. On [300 Neb. 49] appeal, the claimant asserts that
the exclusion exceeded the court's
"gatekeeping" function. Because the record supports
the court's conclusion that the expert's methodology
was unreliable and conclusion-driven, we find no abuse of
discretion in the exclusion and affirm the judgment.
Freeman brought a product liability action against Hoffman-La
Roche, Inc., and Roche Laboratories, Inc. (collectively
Roche), alleging that she developed a chronic medical
condition and other side effects as a result of ingesting
Accutane. Accutane, also known as isotretinoin, is a
pharmaceutical drug manufactured and distributed by Roche for
the treatment of chronic acne.
initially alleged that she suffered from ulcerative colitis-a
type of inflammatory bowel disease (IBD)-which is a chronic
condition characterized by ulceration of the colon and
rectum. However, the expert witnesses generally agreed that
Freeman had actually developed Crohn's disease-another
type of IBD-which causes chronic inflammation and ulcers in
any part of the gastrointestinal tract and tends to extend
beyond and penetrate all layers of the gastrointestinal tract
wall. Both ulcerative colitis and Crohn's disease share
many of the same symptoms. But, as Freeman acknowledges,
"there are differences in the clinical presentation of
the disease[s] and the triggers statistically associated for
material element for her product liability claims, Freeman
was required to prove her injury was proximately caused by
Roche's actions or inactions in manufacturing and
distributing isotretinoin. In other words, she had to show that
ingesting isotretinoin could cause the development of
Crohn's [300 Neb. 50] disease and that her ingestion of
isotretinoin did in fact cause her to develop the
disease. In order to meet this burden of proof,
Freeman intended to call Dr. David B. Sachar as an expert
witness to render opinions on the general and specific
causation of her Crohn's disease.
trial, Roche filed a motion in limine seeking to preclude
Sachar's testimony and challenged his opinions under the
Daubert/Schafersman framework. They did not
suggest that Sachar was unqualified to testify as an expert;
rather, they alleged that his ...