McKinney v. Okoye ( 2014 )

Nebraska Advance Sheets
McKINNEY v. OKOYE 261
Cite as 287 Neb. 261
We briefly note Rick argues on cross-appeal that the dis-
trict court lacked personal jurisdiction over Ryan and that,
so, any rulings as to Ryan were void.45 All the parties agree
on this point, as do we, though it seems to us that the court’s
observations as to Ryan were simply incidental to determin-
ing whether Rick was covered under the policy. But to the
extent the court’s order makes rulings as to Ryan, such rulings
are ineffectual.
CONCLUSION
We conclude that the severability clause does not affect the
unambiguous language of the policies’ exclusions, which bar
coverage for Rick.
Affirmed.
Wright, J., not participating.
45
See, Johnson v. Johnson, 282 Neb. 42, 803 N.W.2d 420 (2011); In re
Interest of William G., 256 Neb. 788, 592 N.W.2d 499 (1999).
Carla McKinney, appellant, v. Matthias I. Okoye
and Nebraska Forensic M edical
Services, P.C., appellees.
___ N.W.2d ___
Filed January 31, 2014. No. S-13-155.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
2. Actions: Proof. In a malicious prosecution case, the conjunctive elements for the
plaintiff to establish are (1) the commencement or prosecution of the proceeding
against the plaintiff, (2) its legal causation by the present defendant, (3) its bona
fide termination in favor of the plaintiff, (4) the absence of probable cause for
such proceeding, (5) the presence of malice therein, and (6) damages.
3. Actions: Public Officers and Employees: Liability. A person who supplies
information to prosecuting authorities is not liable for the prosecutors’ action so
long as any ensuing prosecution is left entirely to the officials’ discretion.
4. Actions: Public Officers and Employees. A prosecution is not considered the
result of the prosecuting authorities’ independent discretion if the informant
either (1) directs or counsels officials in such a way so as to actively persuade
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262 287 NEBRASKA REPORTS
and induce the officers’ decision or (2) knows that the information provided is
false or misleading.
5. ____: ____. A person who knowingly provides false or misleading information
to a public officer may be liable for malicious prosecution even if that person
brought no pressure to bear on the public officer and left the decision to prosecute
entirely in the hands of that public officer.
6. Negligence: Expert Witnesses: Testimony: Intent. Expert testimony may estab-
lish a professional’s conduct was so far afield of accepted professional standards
or so divergent from the conduct of any minimally competent professional that it
is reasonable to infer a knowing or intentional state of mind.
7. Intent: Proof. State of mind is difficult to prove, and rarely will the plaintiff be
able to provide a “smoking gun.”
8. Summary Judgment: Intent. Cases where the underlying issue is one of motive
or intent are particularly inappropriate for summary judgment.
9. Actions: Intent: Proof. Legal causation in a malicious prosecution action is
demonstrated when but for the false or misleading information, the decision to
prosecute would not have been made.
10. Probable Cause: Proof. If there is insufficient undisputed evidence to show
probable cause as a matter of law, the question of probable cause is a mixed ques-
tion of fact and law.
11. Actions: Probable Cause. The element of probable cause in a malicious pros-
ecution action is evaluated from the perspective of the defendant in the action
who is allegedly legally responsible to the plaintiff for the prosecution, not from
the perspective of the nonparty prosecuting officials.
12. Criminal Law: Probable Cause. The question of probable cause is whether a
person in the defendant’s position had reasonable grounds to suspect, based on
the facts known or reasonably believed by the defendant at the time, that the
crime prosecuted had been committed.
13. Probable Cause. Probable cause does not depend upon mere belief, however
sincerely entertained; because if that were so, any citizen would be liable to
arrest and imprisonment, without redress, whenever any person, prompted
by malice, saw fit to swear that he believed the accused was guilty of the
offense charged.
14. Criminal Law: Probable Cause. No probable cause exists if a defendant knew
that the facts stated to prosecuting authorities supporting the suspicions of a
crime were false or misleading.
15. Intent: Words and Phrases. Malice does not refer to mean or evil intent, as a
layman might ordinarily think.
16. Intent. The lack of any personal ill will does not necessarily negate the existence
of malice.
17. Actions: Intent: Words and Phrases. Malice, in the context of a malicious
prosecution action, is any purpose other than that of bringing an offender
to justice.
18. Public Officers and Employees: Evidence. Knowingly providing false or
misleading information to prosecuting authorities may support the inference
of malice.
Nebraska Advance Sheets
McKINNEY v. OKOYE 263
Cite as 287 Neb. 261
Appeal from the District Court for Lancaster County: Paul
D. Merritt, Jr., Judge. Reversed.
George H. Moyer, of Moyer & Moyer, for appellant.
James A. Snowden and Nathan D. Anderson, of Wolfe,
Snowden, Hurd, Luers & Ahl, L.L.P., for appellees.
Wright, Connolly, McCormack, and Miller-Lerman, JJ.,
and Pirtle, Judge.
McCormack, J.
NATURE OF CASE
A daycare provider brought a malicious prosecution action
against the pathologist whose autopsy report was used to
charge her with felony child abuse resulting in death. The
charge was eventually dropped after two forensic pathologists
retained by the daycare provider concluded the cause of death
of the infant under her care was sudden infant death syn-
drome (SIDS). The district court granted summary judgment
in favor of the pathologist on the malicious prosecution claim.
We must determine whether the inference that the pathologist
knowingly provided false or misleading information to law
enforcement can reasonably be drawn from expert testimony
that the pathologist’s autopsy report was false and was “shock-
ingly” unscientific.
BACKGROUND
Carla McKinney had been providing licensed daycare out
of her home for almost 21 years without incident. In 2007,
McKinney started caring for a 6-week-old infant boy. Two
months later, the infant died in McKinney’s care.
Investigation of Infant’s Death
McKinney explained to the police that after feeding the
infant, she laid him down for a nap. When McKinney went
to wake the infant, he was not breathing. McKinney was
unsuccessful in her attempts to revive the infant with cardio-
pulmonary resuscitation. Although McKinney first told police
that the infant remained sleeping on his back until she found
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him not breathing, she later explained that she had turned
the infant onto his stomach when he had fussed before fall-
ing asleep.
Pathologist Dr. Matthias I. Okoye, pursuant to his duties
under a contract with Lancaster County, conducted an autopsy
on the infant. Okoye’s report determined that the cause of
death was homicide through blunt force trauma to the head
(associated with closed head injury) and asphyxiation. As evi-
dence of blunt force trauma to the head, the report listed two
areas of acute subarachnoid hemorrhage, three areas of acute
subdural hemorrhage, acute epidural and intraspinal hemor-
rhage, diffuse acute cerebral edema, a faint contusion on the
head, and a recent contusion on the upper lip. Okoye listed 11
distinct clinical findings supporting asphyxia, which we will
not list here. The report also listed six “faint red contusions”
on the trunk and extremities of the body, as evidence of minor
blunt force trauma to the body. In making the autopsy report,
Okoye relied on his clinical observations during the autopsy,
laboratory tests, reports by the police of McKinney’s descrip-
tion of events, and a computed tomography (CT) whole body
scan that Okoye had ordered.
During questioning, police investigators told McKinney that
the pathologist’s provisional report demonstrated the infant
had died from a blunt trauma to the head while in her care and
that she needed to provide an explanation. The transcription of
the police interviews reflects that McKinney eventually said
that after lifting the infant from an “Exersaucer” and while in
the process of laying him on his side against a “boppy” pillow
on the floor, her hand slipped and his head may have hit the
floor from a couple inches of height.
McKinney Charged With
Felony Child Abuse
McKinney was charged with felony child abuse resulting
in death. One of the prosecuting attorneys explained that the
Lancaster County Attorney’s office did not decide to file the
charge based on Okoye’s autopsy report alone. She averred
that the decision was also based upon the CT scan, McKinney’s
allegedly inconsistent accounts to the police of events the day
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McKINNEY v. OKOYE 265
Cite as 287 Neb. 261
the infant died, and McKinney’s perceived admissions during
questioning that she caused the infant to hit his head either
while being placed on “a ‘boppy pillow’” or when she dropped
the infant to the floor from waist height after picking him out
of “an exercise saucer.”
Charges Are Dropped, and
McKinney Sues Appellees
McKinney’s counsel agreed to waive the probable cause
hearing in exchange for prompt delivery of police reports. The
district court issued an “Order of Probable Cause Finding” with-
out a hearing. Approximately 1 year later, the Lancaster County
Attorney’s office dropped the charges. McKinney alleges that
this occurred after pathologists retained by McKinney found
that the infant had died of SIDS and that there was no evidence
supporting any traumatic injury.
McKinney sued Okoye and his wholly owned corpora-
tion, Nebraska Forensic Medical Services, P.C. (collectively
appellees), for malicious prosecution stemming from Okoye’s
autopsy report. After appellees’ motion to dismiss based on
absolute privilege was unsuccessful,1 appellees moved for sum-
mary judgment.
Expert Testimony Submitted at
Summary Judgment Hearing
At the hearing on appellees’ motion for summary judgment,
differing expert testimony was presented on the correctness of
the autopsy report and the soundness of Okoye’s methodol-
ogy. Okoye generally defended his findings, conclusions, and
methods. Appellees’ expert witness, a forensic pathologist, also
generally defended the autopsy report, except that he found
Okoye’s diagnosis of asphyxia to be a “diagnosis with no phys-
ical evidence offered other than the very non-specific and ubiq-
uitous findings.” Forensic pathologists provided by McKinney,
Drs. Janice Ophoven and Robert Bux, found the autopsy report
“shockingly” baseless in its every detail. Ophoven and Bux
opined that the infant died of SIDS.
1
See McKinney v. Okoye, 282 Neb. 880, 806 N.W.2d 571 (2011).
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Ophoven Deposition
In her deposition, Ophoven addressed Okoye’s autopsy
report finding by finding. Ophoven had reviewed all the evi-
dence relied on by Okoye, as well as numerous photographs
taken by Okoye and law enforcement before, during, and
after the autopsy. She stated she was generally “shocked” that
Okoye had concluded there was any evidence of traumatic
injury. Ophoven stated that much of the supposed evidence of
injury had been created by Okoye during the autopsy.
First, Ophoven opined that what Okoye had described as
subarachnoid hemorrhages were nothing more than “artifact[s]”
created by Okoye during the autopsy process. Ophoven indi-
cated that an artifact is something that is produced by the
autopsy technique and, therefore, is not a legitimate autopsy
finding. Okoye had circled those areas in two photographs of
the brain. Ophoven found Okoye’s characterization of those
areas as hemorrhaging to be a “significant . . . deviation from
good scientific diagnosis.”
Ophoven explained that what was demonstrated by one of
the photographs was simply “a little bit of blood on the surface
of this brain” due to postmortem bleeding after disruptions that
are caused when the skullcap is sawed and pulled off during
the autopsy. Ophoven explained that with a true hemorrhage,
“you see it pooling in the valleys; you see it come up over the
hills, and you see it with sufficient — in a typical pattern that
would suggest that a pathological process was present, and that
is clearly not the case here.”
In the other photograph purporting to show subarachnoid
hemorrhaging, Ophoven opined, “again, it would be one of
those things where you would never conclude that this is hem-
orrhage.” The hemorrhaging was clearly blood vessels that
were disrupted in the process of manually pulling the brain
out of the head cavity. She stated that the two areas of “hem-
orrhaging” roughly corresponded to two equidistant areas on
either side of the brain where the hands would be placed while
extracting it.
Ophoven opined that Okoye had similarly inaccurately char-
acterized three separate locations of “[a]cute subdural hem-
orrhage.” Ophoven noted that photographs showing some
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Cite as 287 Neb. 261
pooling of cerebrospinal fluid were apparently what Okoye
was referring to, “since this is the only thing in the head where
there’s any blood-colored material.” Ophoven explained that
“this is what you see in every brain when you take [it] out”
and that “[w]hen you’re messing with the brain, there’s an
expected amount of cerebrospinal fluid inside the head. And it
will pool, along with some of the blood that you’re disrupting
. . . when you’re handling the brain and cutting into the skull.”
Ophoven stated that she could clearly recognize the fluid as
cerebrospinal fluid because of its translucency. Ophoven said,
“[I]t’s so basic that it is frightening that this was mistaken for
subdural blood.”
Ophoven opined that the finding of epidural and intraspinal
hemorrhaging was likewise baseless. She explained, “[I]t is
well-recognized that this is a postmortem artifact that is not
considered a legitimate finding. There’s lots of literature. .
. . And he has misinterpreted this as a pathological find-
ing when, in fact, this is a routine and expected finding in
infant autopsies.”
The listed “[a]cute subgaleal hemorrhage” was the only area
where Ophoven agreed with Okoye that there was “a real piece
of blood.” Nevertheless, Ophoven explained that the scar tissue
and inflammation clearly visible under a microscope indicated
it was an old injury. Moreover, the injury was clearly limited
to the space between the skull and the scalp; there was no evi-
dence of injury to the brain. Ophoven described the old blood
as representing nothing more than a “bump” or something left
over from the birthing process.
As for Okoye’s listed finding of “[d]iffuse acute cerebral
edema,” Ophoven testified that the pictures of the brain
showed it was “not edematous at all.” The “gyri” and “sulci,”
which Ophoven described as hills and valleys of the brain
surface, were normal and well defined. Ophoven explained
that with a swollen brain, the valleys are closed and the hills
touch each other. She also noted that the CT scan showed
no edema.
Ophoven opined that the “[r]ecent focal red abraded contu-
sion” of the “mid upper lip,” which was listed by Okoye as
evidence of both blunt force trauma to the head and asphyxia,
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was “nothing . . . this looks like every baby mouth.” Ophoven
explained there was no purple contusion, no disruption of the
tissue, and no blood. She believed that any color showing in
the photograph was a result of Okoye’s pulling on the infant’s
mouth. She stated that in another photograph, the infant’s
“little lip is just perfectly normal pink there when it’s not being
pulled up like that.”
Ophoven found the remaining listed contusions entirely
insignificant. They were not the right pattern, color, or dis-
tribution to be indicative of child abuse. She stated that they
appeared to be livor mortis. But if they were injuries, they
were old injuries. Ophoven stated further that if these areas
were of any concern, they should have been examined under
a microscope to confirm they were injuries and whether they
were fresh. This apparently was not done. Ophoven stated that
the “[f]aint red contusion” of the posterior scalp area likewise
looked like livor mortis and that no section was taken from it
to confirm differently.
Ophoven was “at a loss to understand why asphyxia was
added to the list of cause[s] of death.” She found all the listed
clinical findings in the autopsy report in support of this con-
clusion to be either autopsy artifact or otherwise unsupportive
of asphyxia.
Ophoven was especially perplexed by the conclusion of
asphyxia given Okoye’s finding of brain edema. Ophoven
said that brain edema is fundamentally inconsistent with the
pathophysiology of asphyxia. A person who is suffocated,
even slowly, does not have time for his or her brain to swell.
Ophoven stated that Okoye’s inconsistent findings and conclu-
sions were thus “shocking and unscientific” and “not only are
there highly irregular findings in this autopsy, the conclusions
make no sense.”
Ophoven found that Okoye’s conclusion of asphyxia was
inconsistent with clear evidence that there was “white purge”
from the infant’s lungs. Ophoven described white purge as the
“mechanical antithesis to the idea of suffocation.” Ophoven
explained that an infant who is suffocated, especially a
4-month-old infant, would struggle and that some blood would
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enter the lungs through the nose or mouth. The white purge
indicated this did not occur.
In addition to concluding that Okoye’s findings and con-
clusions were baseless, Ophoven generally disapproved of
Okoye’s methodology. She noted that Okoye handled and
sampled the fresh brain before fixing it in formalin. Pictures
showed that Okoye had placed the fresh brain on a table,
allowing it to deform under its own weight. Okoye took
samples for analysis by slicing through the fresh brain, which
Ophoven described as a “giant no-no.” Cutting into a fresh
brain, with its different tissues of varying consistencies,
“wrecks it.”
Ophoven generally did not consider a CT scan to be a use-
ful tool in diagnosing brain injury. And regardless, she found
nothing in the CT scan of the infant indicative of homicide or
child abuse. She stated that the radiologist who wrote the CT
scan report did not purport to state a cause of death and that
the scan found no fractures or evidence of any swelling in the
brain. The scan found a “depression of the occipital bone” on
the right side, which Ophoven described as “nothing . . . a little
divot . . . no big deal.” The CT scan also listed a subdural hem-
orrhage. Ophoven said it was not there and was not confirmed
in the autopsy. Ophoven indicated that a pathologist should
know how to utilize radiology reports and what weight to put
on certain findings. Overall, the CT scan was “a nonhelpful
study that turned out to not show anything that was important
at the postmortem.”
Ophoven summarized that in her 30 years of experience, this
was one of the worst autopsy reports she had ever seen. She
was “absolutely shocked that these [findings] were described as
traumatic injuries.” Ophoven said that Okoye’s report reflected
that “you could then make every [SIDS] case a homicide.” In
every case of SIDS, if one connected “every dot and every
little curlicue and every little artifact and strung it together,
[one] could leave the impression to any reasonable person that
harm had taken place.” And “if I were law enforcement and I
[received] a report such as this[, I] would have been forced to
investigate this case as a homicide.”
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Bux Affidavit
Bux generally agreed with Ophoven’s assessment of Okoye’s
report. Bux stated that Okoye’s method of examining the
infant’s brain by cutting out sections before removing it from
the cranial cavity was not practiced by “any other pathologist
in the western hemisphere.” He explained that it was a bad
practice because of “the inherent friability of the infant brain,
the tendency to introduce artifact and the inability to obtain
good tissue sections for microscopic examination.” Bux found
Okoye’s methodology “bizarre,” “shocking, disturbing and per-
plexing.” Bux also explained that “CT scans are notoriously
inaccurate in determining head trauma.”
Bux concluded that there was “no evidence to support blunt
trauma to the head after a careful distinction is made between
autopsy artifact and antemortem trauma.” Furthermore, the
diagnosis of asphyxia appeared to Bux to be something Okoye
was “throwing . . . in as a second way to establish a traumatic
cause of death if the first cause is rejected by the trier of fact.
There is no objective evidence in Dr. Okoye’s autopsy report to
support this diagnosis.”
Bux clarified that his position on Okoye’s work was not
a “mere difference of professional opinion.” To the contrary,
he was “embarrassed as a fellow professional at the conduct
of Dr. Okoye and the findings he made.” Bux concluded: “If
Dr. Okoye has the training and experience he claims, he could
not make as many errors as he made unless there was some
ulterior motive or a reckless disregard for the integrity of the
judicial process.”
Summary Judgment in
Favor of Appellees
The district court granted summary judgment in favor of
appellees, concluding that there was no material issue as to
several necessary elements of a malicious prosecution claim.
First, the court concluded that there was no material issue
of fact on the required element that Okoye was responsible for
the commencement of the prosecution. The court found as a
matter of law that “no evidence has been presented from which
reasonable minds could conclude that Dr. Okoye knowingly
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Cite as 287 Neb. 261
provided [the county attorney’s office] with false or misleading
information with the intent to persuade or induce her to file the
criminal charge against . . . McKinney.”
Second, the court concluded as a matter of law that suffi-
cient probable cause existed to warrant the filing of the charge
against McKinney. In reaching this conclusion, the court exam-
ined all the information available to the county attorney’s
office, not just what was known by Okoye. The court did not
consider appellees’ argument that McKinney’s waiver of the
preliminary hearing amounted to a prima facie showing of
probable cause.
Third, the court found that reasonable minds could not
conclude that Okoye acted with malice when he prepared
the autopsy reports. Similarly to the court’s first finding,
the court said that reasonable minds could not conclude that
Okoye acted intentionally or with reckless disregard for the
consequences.
McKinney appeals the order of summary judgment, which
resulted in the dismissal of her malicious prosecution claim.
ASSIGNMENT OF ERROR
McKinney assigns, summarized, that the district court erred
in concluding that there was no material issue of fact pertain-
ing to her malicious prosecution claim.
STANDARD OF REVIEW
[1] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party
against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence.2
ANALYSIS
[2] In a malicious prosecution case, the conjunctive ele-
ments for the plaintiff to establish are (1) the commencement
or prosecution of the proceeding against the plaintiff, (2) its
legal causation by the present defendant, (3) its bona fide ter-
mination in favor of the plaintiff, (4) the absence of probable
2
Guinn v. Murray, 286 Neb. 584, 837 N.W.2d 805 (2013).
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272 287 NEBRASKA REPORTS
cause for such proceeding, (5) the presence of malice therein,
and (6) damages.3 The parties do not dispute that the county
attorney’s dismissal of the charges constituted a bona fide ter-
mination of the prosecution in favor of McKinney. And they
agree there is a material issue of fact on damages. We address
whether reasonable minds could differ as to the remaining
elements of a malicious prosecution claim. In doing so, we
must read the testimony of Ophoven and Bux in the light most
favorable to McKinney, and we must give McKinney all rea-
sonable inferences deducible from this evidence.4
Legally R esponsible
for P rosecution
[3,4] We first consider elements (1) and (2): whether Okoye
was legally responsible for the commencement of the pros-
ecution against McKinney. The charges against McKinney
were initiated by the Lancaster County Attorney’s office. A
person who supplies information to prosecuting authorities is
not liable for the prosecutors’ action so long as any ensuing
prosecution is left entirely to the officials’ discretion.5 “The
exercise of the officer’s discretion makes the initiation of the
prosecution his [or her] own and protects from liability the
person whose information or accusation has led the officer to
initiate the proceedings.”6 But, a prosecution is not considered
the result of the prosecuting authorities’ independent discre-
tion if the informant either (1) directs or counsels officials in
such a way so as to actively persuade and induce the officers’
decision or (2) knows that the information provided is false
or misleading.7
3
See, McKinney v. Okoye, supra note 1; Johnson v. First Nat. Bank & Trust
Co., 207 Neb. 521, 300 N.W.2d 10 (1980).
4
See Guinn v. Murray, supra note 2.
5
Schmidt v. Richman Gordman, Inc., 191 Neb. 345, 215 N.W.2d 105
(1974). See, also, e.g., Restatement (Second) of Torts § 653, comment g.
(1977).
6
Restatement, supra note 5 at 409.
7
See, Schmidt v. Richman Gordman, Inc., supra note 5; Restatement, supra
note 5.
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We agree with the district court that there was no issue of
fact concerning whether Okoye actively persuaded the county
attorney’s office to file charges. One of the prosecuting attor-
neys in the underlying criminal action against McKinney
averred: “While I considered Dr. Okoye’s report in making my
decision to file the Information, Dr. Okoye did not at any time
attempt to actively persuade or induce me to pursue prosecu-
tion of . . . McKinney.” Okoye likewise averred that he did not
attempt to persuade law enforcement personnel or the county
attorney’s office to charge a crime.
Nothing in the record supports a contrary inference. It
appears undisputed that the tenor of the communications
between Okoye and the county attorney’s office was no differ-
ent than in any other case for which Okoye relayed his autopsy
results. We decline McKinney’s invitation to expand the mean-
ing of “actively persuade or induce” to encompass the simple
knowledge that an autopsy report plays an important role in a
county attorney’s decision to prosecute.
[5] However, we find the evidence presented at the sum-
mary judgment hearing was sufficient to demonstrate a mate-
rial issue as to whether Okoye knowingly provided false or
misleading information in his autopsy report. A person who
knowingly provides false or misleading information to a public
officer may be liable for malicious prosecution “even if that
person brought no pressure to bear on the public officer and
left the decision to prosecute entirely in the hands of that pub-
lic officer.”8
The governing standard of review for an order of summary
judgment should be, and continues to be, one favorable to the
nonmoving party,9 giving that party the benefit of all reason-
able inferences deducible from the evidence.10 Conclusions
based upon guess, speculation, or conjecture do not create
8
52 Am. Jur. 2d Malicious Prosecution § 24 at 210 (2011). See, also, e.g.,
Bhatia v. Debek, 287 Conn. 397, 948 A.2d 1009 (2008).
9
Controlled Environ. Constr. v. Key Indus. Refrig., 266 Neb. 927, 670
N.W.2d 771 (2003).
10
Guinn v. Murray, supra note 2.
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material issues of fact for purposes of summary judgment.11
But where reasonable minds could differ as to whether an
inference supporting the ultimate conclusion can be drawn,
summary judgment should not be granted.12 We disagree with
appellees’ argument that it would be mere speculation and
conjecture to conclude, from the most favorable view of the
evidence presented at the summary judgment hearing, that
Okoye knowingly presented false or misleading information to
the county attorney’s office.
[6] It may be speculative to infer an intentional or knowing
state of mind from nothing more than evidence of simple neg-
ligence. But McKinney presented evidence that Okoye acted
far afield of mere negligence. Other courts have explained
that in a variety of contexts, expert testimony may establish a
professional’s conduct was “‘so far afield of accepted profes-
sional standards’” or so divergent from the conduct of any
“‘minimally competent professional’” that it is reasonable to
infer a knowing or intentional state of mind.13 We agree that
when experts find statements by a professional in their field
not only false or misleading, but grossly negligent, shock-
ing, and generally inexplicable, then it may be reasonable to
infer that the false or misleading statements were knowingly
and intentionally made. A reasonable fact finder could infer
that Okoye knew or should have known that the statements he
made regarding his autopsy and the findings of said autopsy
were false or misleading.
Ophoven and Bux testified that every single clinical find-
ing listed by Okoye as supporting his conclusion of homicide
was false or misleading, because it either did not exist or did
not indicate trauma. Ophoven and Bux described how Okoye
“shockingly” misrepresented as multiple traumatic injuries
11
See Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455
(2012).
12
Farmington Woods Homeowners Assn. v. Wolf, 284 Neb. 280, 817 N.W.2d
758 (2012).
13
Jimenez v. City of Chicago, 732 F.3d 710, 722 (7th Cir. 2013). See, also,
e.g., Norfleet v. Webster, 439 F.3d 392 (7th Cir. 2006); Collignon v.
Milwaukee County, 163 F.3d 982 (7th Cir. 1998).
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what were only “artifacts” that Okoye himself had created
during the autopsy process. Ophoven and Bux were gener-
ally at a loss to explain how a trained pathologist could con-
clude that even one of these listed findings was evidence of
traumatic injury. Ophoven and Bux described shocking and
bizarre methodology.
The confluence of false or misleading findings and conclu-
sions, each so far afield from the findings and conclusions of
any minimally competent pathologist, could lead to a reason-
able inference that they were more than mistakes and incom-
petence. The evidence of reckless disregard for established
pathology procedures could lead to the inference that Okoye
was unconcerned with establishing a truthful report. Viewing
the evidence in a light most favorable to McKinney as the non-
moving party, we determine reasonable minds could differ as to
whether Okoye knew that the findings and conclusions stated
in the autopsy report were false or misleading.
[7,8] State of mind is difficult to prove, and rarely will the
plaintiff be able to provide a “‘smoking gun.’”14 Thus, we
have explained that cases where the underlying issue is one
of motive or intent are particularly inappropriate for summary
judgment.15 The district court erred in determining Okoye’s
intent as a matter of law.
Appellees argue that even if there is a material issue of fact
whether Okoye knowingly provided false or misleading infor-
mation, he did not cause the prosecution. Appellees point out
statements made by one of the prosecuting attorneys that she
“did not rely on Dr. Okoye’s autopsy report alone in making
[her] decision to prosecute . . . McKinney.”
[9] Such statements do not create even a prima facie case
for summary judgment on the element of legal causation by
the defendant. Legal causation is demonstrated when but for
14
See, Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 324, 127
S. Ct. 2499, 168 L. Ed. 2d 179 (2007); U.S. v. Abu-Jihaad, 630 F.3d 102
(2d Cir. 2010); Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770 (3d Cir.
2007); Com. of Pa. v. Flaherty, 983 F.2d 1267 (3d Cir. 1993); Neiman v.
Tri R Angus, 274 Neb. 252, 739 N.W.2d 182 (2007).
15
Schatz v. Vidlak, 229 Neb. 4, 424 N.W.2d 613 (1988).
Nebraska Advance Sheets
276 287 NEBRASKA REPORTS
the false or misleading information, the decision to prosecute
would not have been made.16 If the decision to prosecute would
have been made with or without the false or misleading infor-
mation, the defendant did not cause the prosecution by supply-
ing false or misleading information.17
Although one of the prosecuting attorneys listed other con-
siderations upon which she based her decision to prosecute, she
did not state whether she would have prosecuted McKinney
with or without Okoye’s autopsy report. And regardless, a
“‘plaintiff is not required to present direct evidence such as
testimony from a prosecutor to establish causation in a mali-
cious prosecution claim.’”18
Proximate causation is generally a question for the jury, and
only where but one inference can be drawn is it proper for the
court to decide the issue.19 Viewing the evidence at the sum-
mary judgment hearing in a light most favorable to McKinney,
we determine reasonable minds could conclude that Okoye’s
false report legally caused the prosecution. We find appellees’
argument to the contrary to be without merit.
P robable Cause
[10] We turn next to the element of probable cause. In an
action for malicious prosecution, probable cause is a ques-
tion of law for the court to determine where there is sufficient
undisputed evidence to show probable cause.20 However, it is
for the jury to determine what facts are proved.21 Thus, if there
16
See, Matthews v BCBSM, 456 Mich. 365, 572 N.W.2d 603 (1998);
Waldner v. Dow, 128 Or. App. 197, 876 P.2d 785 (1994); Danielson v.
Hess, 807 N.W.2d 113 (S.D. 2011); Browning-Ferris Industries, Inc. v.
Lieck, 881 S.W.2d 288 (Tex. 1994); 52 Am. Jur. 2d, supra note 8.
17
See, Matthews v BCBSM, supra note 16; Danielson v. Hess, supra note 16;
King v. Graham, 126 S.W.3d 75 (Tex. 2003).
18
French v. French, 385 S.W.3d 61, 71 (Tex. App. 2012).
19
Maloney v. Kaminski, 220 Neb. 55, 368 N.W.2d 447 (1985).
20
See, e.g., Brumbaugh v. Frontier Refining Co., 173 Neb. 375, 113 N.W.2d
497 (1962); Restatement, supra note 5, § 673.
21
Turner v. O’Brien, 5 Neb. 542, 1877 WL 4241 (1877).
Nebraska Advance Sheets
McKINNEY v. OKOYE 277
Cite as 287 Neb. 261
is insufficient undisputed evidence to show probable cause as a
matter of law, the question of probable cause is a mixed ques-
tion of fact and law.22
[11] The district court erred by evaluating the element of
probable cause from the perspective of the nonparty prosecut-
ing authorities. The element of probable cause in a malicious
prosecution action is evaluated from the perspective of the
defendant in the action who is allegedly legally responsible to
the plaintiff for the prosecution, not from the perspective of
the nonparty prosecuting officials.23 Thus, we have said that
whether probable cause exists depends, not upon the actual
facts of the case, but upon the question of whether the person
making the claim had reasonable grounds to believe in its
truth.24 The person who knowingly provided false or mislead-
ing information becomes the “real prosecutor.”25
[12,13] The question of probable cause is whether a per-
son in the defendant’s position had reasonable grounds to
suspect, based on the facts known or reasonably believed by
the defendant at the time, that the crime prosecuted had been
committed.26 “Probable cause does not depend upon mere
belief, however sincerely entertained. Because if that were
so, any citizen would be liable to arrest and imprisonment
without redress, whenever any person, prompted by malice,
22
See Giannamore v. Shevchuk, 108 Conn. App. 303, 947 A.2d 1012 (2008).
23
See, e.g., Johnson v. First Nat. Bank & Trust Co., supra note 3; Rose v.
Reinhart, 194 Neb. 478, 233 N.W.2d 302 (1975); Cimino v. Rosen, 193
Neb. 162, 225 N.W.2d 567 (1975); Schmidt v. Richman Gordman, Inc.,
supra note 5; Brumbaugh v. Frontier Refining Co., supra note 20; Brewer
v. Fischer, 144 Neb. 712, 14 N.W.2d 315 (1944); Kersenbrock v. Security
State Bank, 120 Neb. 561, 234 N.W. 419 (1931); Turner v. O’Brien, supra
note 21. See, also, e.g., Tomaskevitch v. Specialty Records Corp., 717 A.2d
30 (Pa. Commw. 1998).
24
See Turner v. O’Brien, supra note 21.
25
Holmes v. Crossroads Joint Venture, 262 Neb. 98, 117, 629 N.W.2d 511,
527 (2001).
26
See, Cimino v. Rosen, supra note 23; Jones v. Brockman, 190 Neb. 15, 205
N.W.2d 657 (1973); Brumbaugh v. Frontier Refining Co., supra note 20;
Restatement, supra note 5, § 662.
Nebraska Advance Sheets
278 287 NEBRASKA REPORTS
saw fit to swear that he believed the accused was guilty of the
offense charged.”27
[14] Ophoven and Bux both opined that there was no
reasonable basis for a pathologist in Okoye’s position to
believe that the cause of death was homicide. We have already
discussed that there is a material issue of whether Okoye
knowingly provided false or misleading information in his
autopsy report. No probable cause exists if a defendant knew
that the facts stated to prosecuting authorities supporting the
suspicions of a crime were false or misleading.28 Under such
circumstances, the defendant’s belief that the plaintiff com-
mitted a crime is not reasonable.29 Insofar as there is conflict-
ing expert testimony concerning what someone in Okoye’s
position would have reasonably believed and whether Okoye
knew that the facts stated in his autopsy report were false or
misleading, there is a dispute of fact on the element of prob-
able cause precluding determination of this issue as a matter
of law.
We find no merit to appellees’ argument that McKinney’s
waiver of her preliminary hearing in the underlying criminal
case established a prima facie case of probable cause as a
matter of law. Leaving aside whether such a prima facie case
could otherwise be made when the preliminary hearing was not
actually conducted, there can be no prima facie case of prob-
able cause if false or misleading statements or omissions were
material to that finding.30 Furthermore, even if such a prima
facie case had been made, there is a material issue of fact that
it was rebutted.
The district court erred in concluding that appellees had
demonstrated there was no material issue of fact on the element
of probable cause.
27
Ross v. Langworthy, 13 Neb. 492, 495, 14 N.W. 515, 517 (1882).
28
See, e.g., Horne v. J.H. Harvey Co., 274 Ga. App. 444, 617 S.E.2d 648
(2005).
29
See id.
30
See, Hinchman v. Moore, 312 F.3d 198 (6th Cir. 2002); Darrah v. City of
Oak Park, 255 F.3d 301 (6th Cir. 2001); Lay v. Pettengill, 191 Vt. 141, 38
A.3d 1139 (2011).
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McKINNEY v. OKOYE 279
Cite as 287 Neb. 261
Malice
[15-17] We turn lastly to the element of malice. Malice does
not refer to mean or evil intent, as a layman might ordinarily
think.31 Thus, the lack of any personal ill will does not neces-
sarily negate the existence of malice.32 Malice, in the context of
a malicious prosecution action, is any purpose other than that
of bringing an offender to justice.33
[18] Malice may be deduced from the surrounding facts and
circumstances.34 It may be inferred from the absence of prob-
able cause, although malice and probable cause are not synony-
mous.35 Wanton and reckless disregard for the rights of others
may imply malice.36 Knowingly providing false or misleading
information to prosecuting authorities may support the infer-
ence of malice.37
Whether Okoye acted with malice is a question upon which
reasonable minds could differ—in the same way reasonable
minds could differ, based on the conflicting expert testimony,
as to whether the autopsy report was false or misleading at all.
As a procedural equivalent to a trial, a summary judgment is an
extreme remedy.38 And, like intent, malice is almost always a
question for the trier of fact.39 The district court erred in deter-
mining the element of malice as a matter of law.
CONCLUSION
Appellees failed to demonstrate they are entitled to summary
judgment. Most important, differing reasonable inferences
31
Strong v. Nicholson, 580 So. 2d 1288 (Miss. 1991).
32
7 Am. Jur. Proof of Facts 2d 181 Malicious Prosecution § 11 (1975).
33
See, McKinney v. Okoye, supra note 1; Restatement, supra note 5, § 668.
34
See Schmidt v. Richman Gordman, Inc., supra note 5.
35
See id.
36
Johnson v. First Nat. Bank & Trust Co., supra note 3.
37
See, Sanders v. English, 950 F.2d 1152 (5th Cir. 1992); Horne v. J.H.
Harvey Co., supra note 28; Jenkins v. Baldwin, 801 So. 2d 485 (La. App.
2001).
38
See Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589
(2012).
39
See 7 Am. Jur. Proof of Facts 2d, supra note 32.
Nebraska Advance Sheets
280 287 NEBRASKA REPORTS
could be drawn as to whether Okoye knowingly provided
false or misleading information in his autopsy report. Because
the elements of a malicious prosecution action are difficult
to prove, “a plaintiff has a steep climb in prosecuting a mali-
cious prosecution action.”40 Nevertheless, appellees have not
demonstrated as a matter of law that McKinney will not make
that climb.
We reverse the district court’s order granting appellees sum-
mary judgment.
R eversed.
Heavican, C.J., and Stephan and Cassel, JJ., not participating.
40
McKinney v. Okoye, supra note 1, 282 Neb. at 887, 806 N.W.2d at 578.
State of Nebraska, appellee, v.
Cody M. Bruckner, appellant.
___ N.W.2d ___
Filed January 31, 2014. No. S-13-164.
1. Collateral Estoppel: Appeal and Error. The applicability of the doctrine of
collateral estoppel constitutes a question of law. With regard to such a question,
an appellate court is obligated to reach a conclusion independent from the lower
court’s conclusion.
2. Collateral Estoppel: Words and Phrases. “Collateral estoppel” means that
when an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties or their
privies in any future lawsuit.
3. Collateral Estoppel. There are four conditions that must exist for the doctrine
of collateral estoppel to apply: (1) The identical issue was decided in a prior
action, (2) there was a judgment on the merits which was final, (3) the party
against whom the rule is applied was a party or in privy with a party to the prior
action, and (4) there was an opportunity to fully and fairly litigate the issue in the
prior action.
4. Constitutional Law: Collateral Estoppel: Double Jeopardy. The doctrine of
collateral estoppel is embodied in the 5th Amendment guarantee against double
jeopardy and is applicable to the states through the 14th Amendment.
5. Collateral Estoppel: Double Jeopardy. The fact that collateral estoppel is
embodied in double jeopardy does not mean that it is coextensive with the protec-
tions of double jeopardy.