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Gonzales v. Nebraska Pediatric Practice, Inc.

Court of Appeals of Nebraska

January 29, 2019

Rosa Gonzales and Javier Rojas, Individually and as Parents and Next Friends Of Joaquin Rojas, A Minor, Appellants,
Nebraska Pediatric Practice, Inc., et al., Appellees.

          1. Expert Witnesses: Appeal and Error. Abuse of discretion is the proper standard of review of a district court's evidentiary ruling on the admission of expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

         2. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.

         3. Trial: Evidence: Appeal and Error. To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about evidence admitted or excluded.

         4. Evidence: Expert Witnesses. Expert medical testimony must be based on a reasonable degree of medical certainty or a reasonable probability.

         5. Trial: Expert Witnesses. An objection to the opinion of an expert based upon the lack of certainty in the opinion is an objection based upon relevance.

         6. Evidence: Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

         7. Expert Witnesses: Physicians and Surgeons: Words and Phrases. "Magic words" indicating that an expert's opinion is based on a reasonable degree of medical certainty or probability are not necessary.

          [26 Neb.App. 765] 8. Expert Witnesses: Words and Phrases. An expert opinion is to be judged in view of the entirety of the expert's opinion and is not validated or invalidated solely on the basis of the presence or lack of the magic words "reasonable medical certainty."

         9. Expert Witnesses: Physicians and Surgeons. The requirement that expert medical testimony be based on a reasonable degree of medical certainty or reasonable probability requires that causation testimony move beyond a mere loss of chance-or a diminished likelihood of achieving a more favorable medical outcome.

         10. ____: ____ . Loss of chance, in Nebraska, is insufficient to establish causation.

         11. Trial: Expert Witnesses. Whether a witness is qualified as an expert is a preliminary question for the trial court.

         12. Courts: Expert Witnesses. Under the evaluation of expert opinion testimony, the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion.

         13. 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.

         14. Trial: Expert Witnesses. Before admitting expert opinion testimony, the trial court must (1) determine whether the expert's knowledge, skill, experience, training, and education qualify the witness as an expert; (2) if an expert's opinion involves scientific or specialized knowledge, determine whether the reasoning or methodology underlying the testimony is valid; (3) determine whether that reasoning or methodology can be properly applied to the facts in issue; and (4) determine whether the expert evidence and the opinions related thereto are more probative than prejudicial.

         15. Trial: Expert Witnesses: Pretrial Procedure. A challenge under Daubertv. 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), should take the form of a concise pretrial motion and should identify which of these factors-the expert's qualification, the validity/reliability of the expert's reasoning or methodology, the application of the reasoning or methodology to the facts, and/ or the probative or prejudicial nature of the testimony-is believed to be lacking.

         16. Trial: Expert Witnesses: Physicians and Surgeons. Testimony of qualified medical doctors cannot be excluded simply because they are not specialists in a particular school of medical practice.

         17. Rules of Evidence: Expert Witnesses. Whether a witness is an expert under Neb. Rev. Stat. § 27-702 (Reissue 2016) depends on the factua [26 Neb.App. 766] basis or reality behind a witness' title or underlying a witness' claim to expertise.

         18. Trial: Expert Witnesses. Experts or skilled witnesses will be considered qualified if, and only if, they possess special skill or knowledge respecting the subject matter involved so superior to that of persons in general as to make the expert's formation of a judgment a fact of probative value.

         19. Appeal and Error. An appellate court may, at its discretion, discuss issues unnecessary to the disposition of an appeal where those issues are likely to recur during further proceedings.

         20. Trial: Expert Witnesses. A trial court, when faced with an objection under 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), must adequately demonstrate by specific findings on the record that it has performed its duty as gatekeeper.

         21. Trial: Expert Witnesses: Records: Appeal and Error. After an objection under 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), has been made, the losing party is entitled to know that the trial court has engaged in the heavy cognitive burden of determining whether the challenged testimony was relevant and reliable, as well as a record that allows for meaningful appellate review.

         22. Trial: Expert Witnesses: Appeal and Error. Without specific findings or discussion on the record, it is impossible to determine whether the trial court carefully and meticulously reviewed the proffered scientific evidence or simply made an off-the-cuff decision to admit expert testimony. The trial court must explain its choices so that the appellate court has an adequate basis to determine whether the analytical path taken by the trial court was within the range of reasonable methods for distinguishing reliable expert testimony from false expertise.

          Appeal from the District Court for Douglas County: James T. Gleason, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.

          Greg Garland, of Greg Garland Law, Tara DeCamp, of DeCamp Law, PC, L.L.O., and Kathy Pate Knickrehm for appellants.

          Patrick G. Vipond, Sarah M. Dempsey, and William R. Settles, of Lamson, Dugan & Murray, L.L.P, for appellees.

          [26 Neb.App. 767] Riedmann, Bishop, and Welch, Judges. Welch, Judge.


         Rosa Gonzales and Javier Rojas (Appellants), individually and as parents and next friends of Joaquin Rojas, appeal the district court's order denying the motion to admit expert testimony filed by Appellants and granting the motion to strike expert testimony filed by Nebraska Pediatric Practice, Inc.; Corey S. Joekel, M.D.; and Children's Hospital and Medical Center (Children's) (collectively Appellees). Appellants also appeal the district court's order granting Appellees' motion for summary judgment. For the reasons set forth herein, we affirm in part, and in part reverse and remand for further proceedings consistent with this opinion.


         1. Appellants' Complaint

         In August 2014, Appellants sued Appellees for malpractice or professional negligence under Neb. Rev. Stat. § 44-2822 (Reissue 2010). Specifically, Appellants allege Rosa brought her son Joaquin to the emergency department at Children's on August 5, 2012, with symptoms consistent with mononucleosis, which is also known as the Epstein-Barr virus (EBV). The examining physician diagnosed Joaquin with mononucleosis and discharged him. On August 7, Rosa brought Joaquin back to the emergency department at Children's because Joaquin's symptoms were not improving and some of his symptoms seemed to be getting worse. Appellants allege that at that time, some of Joaquin's symptoms were consistent with mononucleosis and EBV meningoencephalitis. Encephalitis is an inflammation of the brain, and meningitis is an inflammation of the protective membranes covering the brain. Dr. Joekel, the treating emergency department physician, diagnosed Joaquin with mononucleosis and discharged him.

         Three and a half hours after being discharged, Joaquin had a seizure requiring fire department emergency personnel to [26 Neb.App. 768] transport him from his home to the University of Nebraska Medical Center (UNMC) emergency department, where he was subsequently admitted. During the seizure, medical personnel administered antiepileptic drugs and performed a tracheostomy due to a lack of oxygen during the seizure. At UNMC, Joaquin was diagnosed with EBV meningoencephalitis, which is a combination of encephalitis and meningitis, and on August 10, 2012, Joaquin underwent a decompressive craniectomy to remove sections of his skull to relieve pressure on his brain. About a month later, Joaquin underwent a cranioplasty to replace the skull sections. Joaquin was discharged from UNMC to a rehabilitation hospital, where he spent about a month receiving physical and speech therapy. Appellants allege that since returning home, Joaquin has displayed effects of brain injury caused by the August 7 seizure, including learning deficits and placement in special education classes. Appellants' complaint alleges Dr. Joekel was professionally negligent in failing to diagnose Joaquin's EJ3V meningoencephalitis and failing to admit Joaquin to Children's for further supportive treatment and evaluation. On the dates at issue, Dr. Joekel was a pediatric emergency department physician employed with Nebraska Pediatric Practice, which had a contract with Children's to provide emergency department services at its facility.

         2. Pretrial Motions

         In February 2017, Appellants filed a motion under Neb. Rev. Stat. § 27-104 (Reissue 2016) to qualify Dr. Todd Lawrence as an expert witness on all elements of proof required for this medical malpractice claim, including standard of care, breach, causation, and damages. Appellees filed a motion to strike Dr. Lawrence as an expert witness, arguing that his proposed causation testimony amounted to speculative loss-of-chance testimony and was inadmissible under the requirements of Dauber-t 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 [26 Neb.App. 769] (2001) (Daubertl Schafersman). Appellees also filed a motion for summary judgment on the issue of causation, asserting Appellants could not prove causation and had not presented any evidence that Joaquin's outcome would have been different if he had been admitted to Children's and treated on August 7, 2012, rather than being discharged.

         During a hearing on the motions, the court first heard argument and received exhibits on Appellants' motion to qualify their expert and Appellees' motion to strike Appellants' expert. Appellants offered the following exhibits which were received without objection: Dr. Lawrence's curriculum vitae, Appellants' designation of Dr. Lawrence as an expert witness, Dr. Lawrence's deposition, and Dr. Joekel's deposition. Appellees offered Dr. Ivan Pavkovic's deposition, Dr. Pavkovic's affidavit, Dr. Archana Chatterjee's affidavit, and various published medical literature explaining EBV, encephalitis, meningitis, and seizures. Appellants objected to Appellees' exhibits, with the exception of the deposition of Dr. Pavkovic. Specifically, Appellants' counsel stated:

[Counsel]: . . . We object to [the affidavits of Drs. Pavkovic and Chatterjee] on 402, 403, 702, Schafersman 1 and 2, Kuhmo Tire, and . . . the reason for [the objections to the affidavits of Drs. Pavkovic and Chatterjee] -
THE COURT: . . . [I]f you have an objection, make it. ... I don't need argument.
[Counsel]: Those are the numbers. And on [the published medical literature], we object on 402, 403 and 803.17. As there's been no showing that those are reliable documents by any medical witness since they're going to be used in a dispositive motion ....
[Counsel]: . . . Would the court entertain a comment on [the objections to the affidavits of Drs. Pavkovic and Chatterjee]?
THE COURT: No. For the purposes of this hearing, the exhibits will be received.

          [26 Neb.App. 770] After discussion on the motions concerning Dr. Lawrence's testimony, the court then moved to the motion for summary judgment and asked for argument and additional exhibits other than what had already been received. Neither party offered any additional exhibits. Appellees noted that the motion for summary judgment turned on the question of whether Dr. Lawrence's testimony on causation would be permitted. Appellees argued that Dr. Pavkovic indicated, in his opinion, that nothing could have been done to prevent the outcome in this case and that without Dr. Lawrence's testimony, Appellants have no causation opinion. Appellants conceded Appellees' argument and stated: "If you determine that we don't have causation, then [Appellees' motion for summary judgment] needs to be granted."

         3. Exhibits Received During Hearing

         (a) "Designation" of Dr. Lawrence Appellants' "[designation" of Dr. Lawrence provided that Dr. Lawrence specialized in family and emergency medicine. The designation indicated that, in preparation for this case, Dr. Lawrence reviewed Joaquin's medical records from a health clinic, the fire department transport, Children's, UNMC, and an eye consultant, as well as the complaint, answers, and depositions in this case. The designation listed various methodologies which Dr. Lawrence used in his analysis, including the "Case Study Method," the "SOAP Process," the "Differential Diagnosis Method," and the "Differential Etiology Method."

         The designation offered Dr. Lawrence's opinion that Dr. Joekel was required by the applicable standard of care to properly monitor, treat, and diagnose Joaquin during his emergency department visit to Children's on August 7, 2012, including putting EBV encephalitis and meningitis on the differential diagnosis; ordering laboratory work, including a complete blood count test, a white blood count test, a C-reactive protein test, and a urine test; ordering a lumbar puncture; diagnosing [26 Neb.App. 771] and treating EBV encephalitis or meningitis; ordering intravenous (IV) fluids, IV antivirals, and aggressive fever medications; and admitting Joaquin to the hospital to provide supportive care, treatment, and monitoring, including, but not limited to, providing care, treatment, and monitoring of Joaquin's EBV meningoencephalitis. The designation provided Dr. Lawrence's opinion that Dr. Joekel breached this standard of care in failing to perform these functions and that this failure directly caused Joaquin's injuries.

         (b) Dr. Lawrence's Deposition

         In Dr. Lawrence's deposition, he testified he has been employed with a medical center in Waterloo, Iowa, since 2003, where he has served as a medical director and staff physician for the emergency department. Dr. Lawrence is board certified in family practice, but he is not board certified in pediatrics, pediatric neurology, or pediatric infectious disease. Although he serves as an administrator, the majority of his time was spent working as an emergency department physician. In this role, Dr. Lawrence testified that 30 to 40 percent of his patients are pediatric patients; he treats an average of two patients per month with mononucleosis; and of those individuals, he has performed probably four to five total spinal taps and hospitalized an average of two or three of the diagnosed patients each year. Although he has not diagnosed a patient with EBV encephalitis or meningitis, he has treated patients with viral meningitis. As to seizures and their link to brain injury, Dr. Lawrence testified that he has "seen plenty of patients in [his] career with brain injuries related to seizures not related to infections."

         Dr. Lawrence testified he was not sure when Joaquin's mononucleosis turned into EBV meningoencephalitis, but that he believes Joaquin had EBV meningoencephalitis when he was treated by Dr. Joekel on August 7, 2012. In general, Dr. Lawrence provided that the treatment for EBV meningoencephalitis "is supportive care typically, so IV fluids, aggressive fever medications, [and] aggressive hydration." He [26 Neb.App. 772] testified that hospitalization is appropriate if a patient with mononucleosis is "quite ill, not able to keep their fever under control, [and] not able to eat or drink appropriately." He testified that "along with the constellation of other symptoms, the decision to admit a patient, you take all of what's going on and how the child is responding and make a determination if they're sick enough where they need to be admitted or not. It's a clinical judgment."

         Dr. Lawrence testified to areas in which he believes Dr. Joekel deviated from the standard of care; specifically, he testified that Dr. Joekel should have had encephalitis and meningitis higher on his differential diagnosis and performed further tests to rule them out, including a complete blood count test, a white blood count test, a C-reactive protein test, and a lumbar puncture. Dr. Lawrence testified the results of these tests would have indicated a need to hospitalize Joaquin. He also testified that Dr. Joekel should have started Joaquin on IV fluids to ensure hydration. He said that once Joaquin was hospitalized, Joaquin should have received IV fluids, IV antibiotics, and IV acyclovir (which is an antiviral medication), as well as received more monitoring and management of his fever through more aggressive fever medications. These treatments, Dr. Lawrence acknowledged, would not have addressed the EBV infection directly, but instead would have addressed some of the EBV symptoms to assist Joaquin's body in fighting the infection itself. Dr. Lawrence indicated that hydration, both orally and through IV fluids, assists the patient's body in addressing the symptoms of EBV and, perhaps, in fighting the virus itself. As such, Dr. Lawrence testified that doing so may have reduced Joaquin's fever and the risk of seizure. As to acyclovir, Dr. Lawrence provided: "[W]hile it is not a specific treatment for [suspected mononucleosis that has turned into encephalitis, ]" there are "some anecdotal studies that it does help and helps reduce the shedding of the virus." However, Dr. Lawrence acknowledged acyclovir is typically "more for the herpes viral type" and "no studied evidence . . . proves" [26 Neb.App. 773] that acyclovir can treat EBV or prevent its further progression. Dr. Lawrence testified that if he had a child present with viral meningitis, he would "start them an IV of acyclovir with the hopes [that it would] decrease the viral shedding." As to the fever monitoring and medicating, Dr. Lawrence opined that the hospital would have monitored Joaquin's fever and would have better managed it by "giving him Tylenol and/or ibuprofen."

         Dr. Lawrence opined that Joaquin's lack of treatment and hospitalization contributed to his injuries, claiming that Joaquin's brain injury was caused by both the EBV meningoencephalitis and the seizure. Dr. Lawrence provided that the seizure contributed to Joaquin's brain injury in two possible ways, or in some combination thereof: First, the length and severity of the seizure could have, itself, resulted in brain injury. Second, the lack of oxygen caused by the seizure could have resulted in brain injury. Although he could not specifically attribute what percentage of Joaquin's brain injury was caused by the EBV meningoencephalitis and what percentage was caused by the failure to control Joaquin's seizure, he stated that the seizure, through these pathways and in combination with the EBV meningoencephalitis, resulted in brain swelling which, in turn, resulted in brain injury. When asked whether the seizure or the EBV meningoencephalitis was more responsible for the brain injury, Dr. Lawrence stated:

I'd have to defer that off to your pediatric neurologist that you referenced. But I think . . . clearly, it was both.
And to give a number on there, I don't know how you could assign a number. But I've seen plenty of patients in my career with brain injuries related to seizures not related to infections.

         Dr. Lawrence opined that if Joaquin was adequately treated, his fever and hydration would have improved, which would have helped his body fight the infection which caused the brain injury. Dr. Lawrence specifically testified that "it may have decreased his chance of actually developing the encephalitis that triggered the seizure" or reduced or prevented the [26 Neb.App. 774] seizure. Specifically, he addressed how taking steps to hospitalize, treat, and monitor Joaquin would have diminished the seizure, stating:

My opinion is that had they identified the meningitis, encephalitis sooner, he would have been admitted to the hospital. He may or may not have had the seizure. Had he had the seizure, it would have been not as severe because he was in the hospital. And they could have used abortive seizure, epileptic medicines sooner.
And then his outcome would have been not as severe requiring all the constellation of problems that he's had following that, between the craniotomy, the surgeries, the G-tube, the tracheostomy, the long hospitalization, the admission to the rehab unit, et cetera.

         Dr. Lawrence further explained the seizure would have been better managed and possibly prevented if Joaquin had been in the hospital, because his hospitalization would have allowed for the management of his fever and hydration, use of antiepi-leptic drugs, and the ability to address his deficiency in oxygen as it arose. Dr. Lawrence stated that Joaquin "would have had a decreased length of hypoxia, decreased length of the seizure, and would have had a better outcome, which, with the ...

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