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.
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
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.
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
Evidence: Expert Witnesses. Expert medical
testimony must be based on a reasonable degree of medical
certainty or a reasonable probability.
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.
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.
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.
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
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.
____: ____ . Loss of chance, in Nebraska, is insufficient to
Trial: Expert Witnesses. Whether a witness
is qualified as an expert is a preliminary question for the
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.
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.
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
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.
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.
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.
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
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
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.
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
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.
from the District Court for Douglas County: James T. Gleason,
Judge. Affirmed in part, and in part reversed and remanded
for further proceedings.
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.
Neb.App. 767] Riedmann, Bishop, and Welch, Judges. Welch,
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
STATEMENT OF FACTS
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
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
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.
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
THE COURT: No. For the purposes of this hearing, the exhibits
will be received.
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
Exhibits Received During Hearing
"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."
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.
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
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
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
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
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.
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 ...