Gonzales v. Nebraska Pediatric Practice , 308 Neb. 571 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/05/2021 09:07 AM CST
- 571 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
Rosa Gonzales and Javier Rojas, individually
and as parents and next friends of Joaquin
Rojas, a minor, appellants, v. Nebraska
Pediatric Practice, Inc., and Corey
S. Joekel, M.D., appellees.
___ N.W.2d ___
Filed March 5, 2021. No. S-20-253.
1. Courts: Expert Witnesses. A trial court acts as a gatekeeper to ensure
the evidentiary relevance and reliability of an expert’s opinion.
2. ____: ____. An evaluation under Schafersman v. Agland Coop, 262 Neb.
215, 631 N.W.2d 862 (2001), generally consists of four factors, includ-
ing a determination of (1) whether the witness is qualified to testify as
an expert, (2) whether the witness’ testimony is supported by scientifi-
cally valid and reliable methodology or reasoning, (3) whether the rea-
soning or methodology has been properly applied to the facts in issue,
and (4) whether the testimony’s probative value is not substantially
outweighed by danger of unfair prejudice.
3. Judgments: Appeal and Error. For purposes of a law-of-the-case
analysis, construction of an appellate court’s prior opinion is determined
by an appellate court as a matter of law.
4. ____: ____. An appellate court reviews matters of law de novo, indepen-
dently of the lower court’s determination.
5. Summary Judgment: Appeal and Error. An appellate court reviews
a grant of summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reasonable infer-
ences in that party’s favor.
6. ____: ____. An appellate court affirms a 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 the facts and that the moving party is entitled to judgment
as a matter of law.
- 572 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
7. Actions: Appeal and Error. Law of the case is a procedural doctrine
that bars reconsideration of the same or similar issues at successive
stages of the same suit or prosecution.
8. ____: ____. The law-of-the-case doctrine reflects the principle that to
promote finality and to protect parties’ settled expectations, an issue liti-
gated and terminally decided in one stage of a case should not be later
resuscitated at a later stage.
9. Appeal and Error. Under the law-of-the-case doctrine, the holdings of
an appellate court on questions presented to it for review become the
law of the case.
10. ____. Under the law-of-the-case doctrine, unless the facts presented on
remand are shown by the petitioner to be materially and substantially
different, an appellate court’s prior holdings conclusively settle all mat-
ters ruled upon, either expressly or by necessary implication.
11. Pretrial Procedure: Expert Witnesses. An objection under Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), must take the
form of a concise pretrial motion.
12. ____: ____. In terms of the factors under Schafersman v. Agland Coop,
262 Neb. 215, 631 N.W.2d 862 (2001), a motion to exclude should iden-
tify what is believed to be lacking with respect to the expert testimony
at issue.
13. ____: ____. A motion to exclude expert testimony should be stated with
enough specificity as to a particular factor that the court understands
what is being challenged and can accordingly determine the necessity
and extent of any pretrial proceedings.
14. Expert Witnesses: Proof. It is the objecting party’s burden to raise an
adequately specific objection to expert testimony.
15. Expert Witnesses: Waiver. A failure to make an adequately specific
objection to expert testimony will result in a waiver of the right to object
on that basis.
16. Appeal and Error. For purposes of a law-of-the-case analysis, it is
enough for an appellate court to recognize the scope of issues conclu-
sively settled in the appellate court’s prior opinion.
17. ____. An appellate court interprets the scope of an appellate court’s
prior opinion as a matter of law without regard to the parties’ or even
the prior appellate court’s subjective interpretations.
18. ____. An appellate court is not obligated to engage in an analysis that is
not necessary to adjudicate the case and controversy before it.
Appeal from the District Court for Douglas County: James
T. Gleason, Judge. Reversed and remanded for further
proceedings.
- 573 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
Greg Garland, of Garland Medmal, L.L.C., Tara DeCamp,
of DeCamp Law, P.C., L.L.O., and Kathy Pate Knickrehm
for appellants.
Sarah M. Dempsey, Patrick G. Vipond, and Michael L.
Storey, of Lamson, Dugan & Murray, L.L.P., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
I. INTRODUCTION
Appellants Rosa Gonzales and Javier Rojas are the parents
of Joaquin Rojas, a minor who suffered a brain injury. Alleging
that Joaquin’s brain injury was caused by Dr. Corey Joekel,
M.D., when he misdiagnosed and failed to treat Joaquin’s con-
dition, appellants brought a malpractice action against appel-
lees Joekel and his employer, Nebraska Pediatric Practice, Inc.
Based on appellees’ objection, the district court found the
expert testimony of appellants’ key witness inadmissible. After
excluding that testimony, the district court granted summary
judgment to appellees.
For the reasons set forth herein, we reverse the district
court’s order granting summary judgment and remand the cause
for further proceedings consistent with this opinion.
II. BACKGROUND
1. Complaint
On August 5, 2012, Joaquin, who was then 5 years old, was
exhibiting symptoms consistent with mononucleosis, a com-
mon condition frequently caused by the Epstein-Barr virus
(EBV). Gonzales brought Joaquin to the emergency depart-
ment at Children’s Hospital and Medical Center (CHMC) in
Omaha, Nebraska. After an examination, an emergency depart-
ment physician diagnosed Joaquin with mononucleosis and
discharged him.
Over the next 2 days, Joaquin continued to exhibit many
of the same symptoms. Concerned that some of Joaquin’s
- 574 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
symptoms might be worsening, Gonzales returned Joaquin to
the emergency department at CHMC the morning of August 7,
2012. Joekel, the attending emergency department physician,
examined Joaquin and diagnosed him with mononucleosis.
Joekel ordered Joaquin discharged at 8:44 a.m.
Approximately 31⁄2 hours later, Joaquin began to seize.
Gonzales called the 911 emergency dispatch system, and
Joaquin was transported by ambulance to the University of
Nebraska Medical Center (UNMC) in Omaha. At 12:39 p.m.,
Joaquin was admitted to the emergency department at UNMC.
He was unresponsive and exhibiting decreased respirations.
After UNMC staff administered antiepileptic medication,
Joaquin began to gradually regain consciousness. Joaquin was
diagnosed with EBV meningoencephalitis, a serious infection
of the brain and surrounding tissue that can arise as a compli-
cation of mononucleosis.
Joaquin also experienced brain swelling and oxygen loss.
On August 10, 2012, surgeons at UNMC performed a decom-
pressive craniectomy, removing sections of Joaquin’s skull
to relieve pressure on his brain. On September 5, UNMC
surgeons performed a cranioplasty to replace the sections of
Joaquin’s skull that they had removed.
On September 10, 2012, Joaquin was transferred to a reha-
bilitation center for physical and speech therapy. He was
discharged home on October 13. Joaquin’s parents allege that
when Joaquin then attended school, he displayed symptoms
of a brain injury, including learning deficits that required his
placement in special education classes.
On August 1, 2014, appellants filed a complaint in the
district court for Douglas County, asserting that Joaquin’s
injuries were attributable to Joekel’s professional negligence.
On behalf of themselves and Joaquin, appellants sought dam-
ages from appellees under the Nebraska Hospital-Medical
Liability Act. 1
1
Neb. Rev. Stat. §§ 44-2801 to 44-2855 (Reissue 2010).
- 575 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
2. First Appeal
As the case progressed toward trial, a dispute arose concern-
ing the admissibility of certain expert testimony. Pursuant to
Neb. Rev. Stat. § 27-702 (Reissue 2016), appellants moved
to admit the testimony of Dr. Todd Lawrence, a family and
emergency room physician, “on all elements of proof required
to prove a prima facie case of medical malpractice.” Lawrence
planned to opine that Joaquin’s medical outcome would have
been better if, on August 7, 2012, Joekel would not have mis-
diagnosed Joaquin and failed to admit him for further treatment
at CHMC.
Appellees moved to prevent Lawrence from testifying to
this opinion. Their basis for objecting to Lawrence’s testimony
was, in part, Schafersman v. Agland Coop (Schafersman I ), 2 the
case in which we adopted the framework set forth in Daubert
v. Merrell Dow Pharmaceuticals, Inc., 3 and its progeny 4 for
evaluating whether to admit expert testimony.
[1,2] Under our Schafersman I jurisprudence, the trial court
acts as a gatekeeper to ensure the evidentiary relevance and
reliability of an expert’s opinion. 5 A Schafersman I evalua-
tion generally consists of four factors, including a determi­
nation of (1) whether the witness is qualified to testify as an
expert, (2) whether the witness’ testimony is supported by
scientifically valid and reliable methodology or reasoning,
(3) whether the reasoning or methodology has been properly
applied to the facts in issue, and (4) whether the testimony’s
2
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
3
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993).
4
See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167,
143 L. Ed. 2d 238 (1999); General Electric Co. v. Joiner, 522 U.S. 136,
118 S. Ct. 512, 139 L. Ed. 2d 508 (1997).
5
See Schafersman I, supra note 2. See, also, State v. Simmer, 304 Neb. 369,
935 N.W.2d 167 (2019).
- 576 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
probative value is not substantially outweighed by danger of
unfair prejudice. 6
Appellees also moved for summary judgment, claiming that
without Lawrence’s testimony, appellants could not prove cau-
sation, an essential element in a medical malpractice case. 7
After an evidentiary hearing, the district court agreed with
appellees that Lawrence’s testimony was inadmissible. The
court excluded the testimony on two bases: first, that under
Schafersman I, Lawrence was unqualified to testify about cau-
sation as an expert; and second, that under our line of cases
concerning the relevance of expert testimony, 8 Lawrence’s
opinions amounted to inadmissible loss-of-chance testimony.
In a separate order, the district court granted appellees’ motion
for summary judgment.
On the first appeal of this case, the Nebraska Court of
Appeals affirmed in part, and in part reversed and remanded
for further proceedings. 9 All three of the panel’s judges agreed
that a portion of Lawrence’s opinions amounted to loss-of-
chance testimony, “which, in Nebraska, is insufficient to estab-
lish causation.” 10
Yet as to the portion of Lawrence’s opinions that the court
found was not loss-of-chance testimony, the panel divided
on whether Lawrence was qualified to render such opinions.
After a thorough analysis applying the relevant Schafersman I
factors, a majority of the Court of Appeals concluded that
6
See Epp v. Lauby, 271 Neb. 640, 715 N.W.2d 501 (2006). See, also,
Simmer, supra note 5.
7
See Ewers v. Saunders County, 298 Neb. 944, 906 N.W.2d 653 (2018).
8
See, e.g., Cohan v. Medical Imaging Consultants, 297 Neb. 111, 900
N.W.2d 732 (2017), modified on denial of rehearing, 297 Neb. 568, 902
N.W.2d 98; Richardson v. Children’s Hosp., 280 Neb. 396, 787 N.W.2d
235 (2010); Rankin v. Stetson, 275 Neb. 775, 749 N.W.2d 460 (2008).
9
See Gonzales v. Nebraska Pediatric Practice, 26 Neb. Ct. App. 764, 923
N.W.2d 445 (2019).
10
Id. at 786, 923 N.W.2d at 461.
- 577 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
Lawrence was qualified and that therefore, the district court
had abused its discretion in excluding Lawrence’s testimony, 11
with one judge concurring in part, and in part dissenting. 12 The
Court of Appeals then remanded the cause “for further pro-
ceedings in compliance with [its] opinion.” 13
3. Orders on Remand
On remand, appellees renewed their objection that
Lawrence’s testimony was inadmissible under Schafersman I.
They moved to amend the scheduling order to name an addi-
tional expert witness, Dr. Daniel Bonthius, a neurologist and
pediatrician who specialized in viral encephalitis.
Then, supported by live video testimony from Bonthius,
affidavits from two other physicians who specialized in pedi-
atric epilepsy and infectious disease, and three articles from
medical journals, appellees challenged Lawrence’s testimony
under the second and third Schafersman I factors. To wit,
appellees contended that Lawrence’s testimony would depend
on invalid “methods or scientific knowledge” and would not
properly apply valid methods or reasoning to the facts in
issue. Further, on the condition that their motion to exclude
Lawrence’s testimony was granted, appellees moved again for
summary judgment.
At a hearing on appellees’ motions, appellants objected
to the form of Bonthius’ testimony. But because appellees
had provided nearly 4 months’ notice of their intent to offer
Bonthius’ testimony by live video, and because appellants
had only begun objecting to Bonthius’ testimony in that form
on the day before the hearing, the district court concluded
that appellants had “implicitly agreed” to such testimony
by their conduct. The district court thus received Bonthius’
11
See Gonzales, supra note 9.
12
But see id. (Bishop, Judge, concurring in part, and in part dissenting).
13
Id. at 799, 923 N.W.2d at 468.
- 578 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
testimony by live video pursuant to Neb. Rev. Stat. § 24-734(4)
(Reissue 2016). 14
The district court then granted appellees’ motion to
exclude Lawrence’s testimony from trial. Despite finding that
Lawrence was qualified as a physician and entitled to give
“medical opinions,” the district court found that his testimony
“with regard to the causation of seizures and the extent and
longevity thereof are not within his skill set and[,] based on
the testimony of [Bonthius], are not consistent with current
medical knowledge in the area.” Accordingly, the district
court ordered that “causation opinions regarding any relation-
ship between [EBV meningoencephalitis] and seizures offered
by Dr. Lawrence must be stricken.” Because appellants’ argu-
ment for causation depended for support on Lawrence’s tes-
timony, the district court also granted summary judgment
to appellees.
Appellants filed a timely notice of appeal. 15 While the
appeal was pending, appellees requested a supplemental bill
of exceptions containing the records from two hearings. The
court reporter averred that she was unable to produce a record
for one of the hearings because no stenographic record had
been made.
Appellees moved for an order nunc pro tunc to augment the
bill of exceptions with an affidavit from their attorney that had
allegedly been received at that hearing but not included in the
record. Finding that the affidavit had been properly received
as evidence but “inadverten[tly]” left out of the record due to
“clerical error” by the court reporter, the district court granted
appellees’ motion and ordered the affidavit included in the bill
of exceptions.
We moved the appeal to our docket. 16
14
See, also, 2020 Neb. Laws, L.B. 912 (codified as § 24-734 (Cum. Supp.
2020), amending § 24-734(4) after relevant time in this case).
15
See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020).
16
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
- 579 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
III. ASSIGNMENTS OF ERROR
Appellants assign three errors, which we restate as fol-
lows: (1) that the district court was precluded, under the law
of the case, from excluding the testimony of their expert,
Lawrence; (2) that the district court violated the law of the
case, Schafersman I, and § 24-734(4) in admitting the testi-
mony of appellees’ experts; and (3) that the district court erred
in granting summary judgment.
IV. STANDARD OF REVIEW
[3,4] For purposes of a law-of-the-case analysis, construc-
tion of an appellate court’s prior opinion is determined by an
appellate court as a matter of law. 17 An appellate court reviews
matters of law de novo, independently of the lower court’s
determination. 18
[5,6] An appellate court reviews a grant of summary judg-
ment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences
in that party’s favor. 19 An appellate court affirms a 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 the facts
and that the moving party is entitled to judgment as a matter
of law. 20
V. ANALYSIS
1. Preclusion Under Law of Case
We begin our analysis by considering the district court’s
decision to exclude Lawrence’s testimony. Appellants contend
that the Court of Appeals’ earlier opinion in this case con-
clusively settled that Lawrence’s testimony was admissible.
17
See TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493, 941
N.W.2d 145 (2020).
18
See id.
19
Kaiser v. Allstate Indemnity Co., 307 Neb. 562, 949 N.W.2d 787 (2020).
20
Id.
- 580 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
Thus, they allege, the law of the case precluded appellees’
renewed Schafersman I objection on remand to Lawrence’s
testimony.
[7,8] Law of the case is a procedural doctrine that bars
reconsideration of the same or similar issues at successive
stages of the same suit or prosecution. 21 The doctrine reflects
the principle that to promote finality and to protect parties’
settled expectations, an issue litigated and terminally decided
in one stage of a case should not be later resuscitated at a
later stage. 22
[9,10] Under the law-of-the-case doctrine, the holdings of an
appellate court on questions presented to it for review become
the law of the case. 23 Thereafter, unless the facts presented on
remand are shown by the petitioner to be materially and sub-
stantially different, the appellate court’s holdings conclusively
settle all matters ruled upon, either expressly or by neces-
sary implication. 24
Here, we agree with appellants that the admissibility of
Lawrence’s testimony was conclusively settled by the Court
of Appeals and that therefore, appellees’ renewed objec-
tion on remand to that testimony was precluded. Among the
questions presented to the Court of Appeals for review were
whether Lawrence’s opinions had met the requirements for
reliability and relevance under Schafersman I to be admis-
sible as expert testimony “on the subject of causation of
Joaquin’s injuries.” 25
After thoroughly analyzing Lawrence’s testimony against
the relevant factors, the Court of Appeals answered in
the affirmative:
21
See State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020).
22
See Parks v. Hy-Vee, 307 Neb. 927, 951 N.W.2d 504 (2020). See, also,
State v. Thompson, 69 Neb. 157, 95 N.W. 47 (1903).
23
See Price, supra note 21.
24
See id. See, also, Carpenter v. Cullan, 254 Neb. 925, 581 N.W.2d 72
(1998).
25
Gonzales, supra note 9, 26 Neb. Ct. App. at 783, 923 N.W.2d at 460.
- 581 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
Dr. Lawrence clearly possesses special knowledge
respecting the causation of brain injury and scarring from
seizures superior to that of persons in general as to make
his formation of a judgment a fact of probative value. .
. . If [a]ppellees have more specialized experts and evi-
dence to attack Dr. Lawrence’s conclusions, [a]ppellees
remain capable of cross-examining Dr. Lawrence and
bringing their own experts and evidence to counter his
opinions. However, this becomes a question of fact for
the fact finder. 26
Thus, the Court of Appeals held that the district court had
“abused its discretion in determining that Dr. Lawrence was
unqualified under § 27-702 to testify on causation as to the
injuries Joaquin suffered due to Dr. Joekel’s failure to hospi-
talize, treat, and control Joaquin’s seizure, the sole causation
opinion offered by Dr. Lawrence . . . .” 27
That holding by the Court of Appeals established the law
of the case. It conclusively settled that under Schafersman I,
Lawrence’s testimony was admissible to prove causation in
this case.
Because Bonthius’ testimony is nothing more than a new
opinion concerning facts that already existed before remand,
it does not qualify as a material and substantial difference
in the facts underlying the Court of Appeals’ decision such
that it should displace the application of the law-of-the-case
doctrine. 28 And unlike expert testimony in a retrial, which we
have said is not necessarily precluded by foundational chal-
lenges raised before, 29 Lawrence’s opinions on remand are
essentially the same as those the Court of Appeals consid-
ered previously. At the least, appellees have failed to show
26
Id. at 794, 923 N.W.2d at 465-66.
27
Id. at 795, 923 N.W.2d at 466.
28
See Talle v. Nebraska Dept. of Soc. Servs., 253 Neb. 823, 572 N.W.2d 790
(1998).
29
See State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006).
- 582 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
a material and substantial difference. 30 Therefore, under the
Court of Appeals’ opinion, appellees were precluded from
renewing, on remand, their Schafersman I-based objections to
Lawrence’s testimony.
Appellees urge us to parse the scope of the Court of Appeals’
opinion more narrowly. By appellees’ reading, the opinion
settled only one issue under Schafersman I—Lawrence’s quali-
fications—and did not reach the separate Schafersman I issues
of whether Lawrence’s testimony was supported by scientifi-
cally valid methodology and whether it properly applied such
methodology to the facts in issue.
Appellees cite language in the Court of Appeals’ opinion
that they claim “invited” objections based on these grounds
after remand. 31 The Court of Appeals stated:
[W]e express no opinion as to whether [Dr. Lawrence’s]
theory or methodology supporting the opinion are valid,
whether the theory or methodology were properly applied
to the facts in this case, or whether Dr. Lawrence’s tes-
timony is more probative or prejudicial. To the extent
[a]ppellees were challenging those factors, those com-
ponents of the Daubert/Schafersman analysis were not
addressed by the district court in its order. 32
But while we agree that by its express acknowledgment
the Court of Appeals elected not to separately analyze those
Schafersman I factors, we disagree that the factors remained
subject to challenge on remand.
[11-15] As the Court of Appeals noted elsewhere in its opin-
ion, a Schafersman I objection must take the form of a concise
pretrial motion. 33 Such motion should identify, in terms of the
Schafersman I factors, what is believed to be lacking with
30
See Carpenter, supra note 24.
31
Brief for appellees at 27.
32
Gonzales, supra note 9, 26 Neb. App. at 795, 923 N.W.2d at 466.
33
See Gonzales, supra note 9. See, also, Simmer, supra note 5.
- 583 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
respect to the expert testimony at issue. 34 It should be stated
with enough specificity as to a particular factor that the court
understands what is being challenged and can accordingly
determine the necessity and extent of any pretrial proceed-
ings. 35 It is the objecting party’s burden to raise an adequately
specific objection to expert testimony. 36 Because this specific-
ity requirement is necessary to protect judicial economy and
resources, 37 a failure to make an adequately specific objection
to expert testimony will result in a waiver of the right to chal-
lenge that factor. 38
Considering this established waiver rule, we are satisfied
that it explains why the Court of Appeals declined to separately
analyze the Schafersman I factors raised in appellees’ renewed
objection on remand. 39 After stating the waiver rule, the Court
of Appeals found:
It is unclear from the record whether [a]ppellees’
[Schafersman I] challenge to Dr. Lawrence was limited
to his qualifications to testify or whether [a]ppellees were
extending their challenge to his theory or methodology
and/or his application of the facts to his theory or meth-
odology. See brief for appellees at 28 (arguing that Dr.
Lawrence’s opinions “were not sufficiently reliable”). We
note the Nebraska Supreme Court’s admonition that a
Daubert/Schafersman challenge should specifically iden-
tify which of the factors is believed to be lacking. We
also note this record is somewhat devoid of analysis as it
relates to those other specific factors. 40
34
See Simmer, supra note 5.
35
See In re Interest of Christopher T., 281 Neb. 1008, 801 N.W.2d 243
(2011).
36
See id.
37
State v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014).
38
See, e.g., Simmer, supra note 5; In re Interest of Christopher T., supra
note 35.
39
Gonzales, supra note 9.
40
Id. at 789, 923 N.W.2d at 463.
- 584 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
By finding “unclear” appellees’ other Schafersman I­-based
objections in the record, the Court of Appeals determined that
the objections had not been raised with adequate specificity. 41
According to the Court of Appeals, appellees’ passing charac-
terization of Lawrence’s testimony as “‘not sufficiently reli-
able’” was not an adequately specific objection. 42 We thus read
the Court of Appeals’ opinion as deciding that to the extent
appellees had wished to challenge Lawrence’s testimony on
Schafersman I grounds beyond his alleged lack of qualifica-
tions, they had waived those challenges.
[16,17] We do not judge the merits of that decision here,
because for purposes of our law-of-the-case analysis, it is
enough for us to recognize the scope of issues conclusively
settled in the Court of Appeals’ opinion. 43 We interpret its
scope as a matter of law without regard to the parties’ or even
the Court of Appeals’ subjective interpretations. 44 It is that de
novo interpretation of the opinion that leads us to conclude the
Court of Appeals applied our waiver rule, thus precluding fur-
ther challenges to Lawrence’s testimony based not only on his
qualifications but also on all other Schafersman I factors.
Our waiver rule may not have been the Court of Appeals’
only justification for declining to analyze the Schafersman I
factors raised in appellees’ renewed objection on remand. The
Court of Appeals also noted that under principles of judicial
restraint, it could avoid analyzing those factors because the
district court had not analyzed them, grounding its decision
instead “solely on the basis of [Lawrence’s] qualification to
give such opinion.” 45
But regardless of how many justifications the Court
of Appeals had for not analyzing the Schafersman I factors
41
See id.
42
See id.
43
See Price, supra note 21.
44
See, Bayne v. Bayne, 302 Neb. 858, 925 N.W.2d 687 (2019). See, also,
Kerndt v. Ronan, 236 Neb. 26, 458 N.W.2d 466 (1990).
45
Gonzales, supra note 9, 26 Neb. App. at 789, 923 N.W.2d at 463.
- 585 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
raised in appellees’ renewed objection on remand, what matters
now is our finding that the waiver rule was among those jus-
tifications. By determining that appellees’ ­qualification-based
objection lacked merit, in part, and that their other Schafersman I
objections had been waived, the Court of Appeals conclu-
sively settled all of appellees’ potential Schafersman I-based
objections to Lawrence’s testimony.
We consequently disagree with appellees’ parsing of the
Court of Appeals’ opinion. Contrary to appellees’ ­interpretation,
the opinion was not an invitation to relitigate the admissibility
of Lawrence’s testimony. Nor was appellees’ renewed objec-
tion fair game on remand. Under our de novo interpretation,
the Court of Appeals’ opinion ended the parties’ pretrial dispute
concerning the admissibility of Lawrence’s testimony.
As the Court of Appeals observed, “[i]f [a]ppellees have
more specialized experts and evidence to attack Dr. Lawrence’s
conclusions, [a]ppellees remain capable [at trial] of cross-
examining Dr. Lawrence and bringing their own experts and
evidence to counter his opinions.” 46 But for purposes of this
Schafersman I motion to exclude, appellees’ renewed objection
on remand to Lawrence’s testimony was precluded under the
law of the case.
Consistent with appellants’ first assignment of error, we find
that the district court’s order excluding Lawrence’s testimony
was in error.
2. Summary Judgment
Appellants also raise various arguments for why the district
court erred in admitting the testimony of appellees’ experts.
[18] We need not reach those arguments here because an
appellate court is not obligated to engage in an analysis that
is not necessary to adjudicate the case and controversy before
it. 47 Summary judgment in this case depended on ­appellants’
46
Id. at 794, 923 N.W.2d at 466.
47
See George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947
N.W.2d 510 (2020).
- 586 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 308 Neb. 571
failure to raise a genuine dispute as to the causation of
Joaquin’s injury, an essential element of their medical mal-
practice claim. 48 But because we reverse the order excluding
Lawrence’s testimony, that testimony is properly in the record
and raises a genuine dispute about causation, regardless of
appellees’ evidence. Summary judgment was unwarranted.
VI. CONCLUSION
The district court’s order excluding Lawrence’s testimony
was in error. We reverse the district court’s grant of sum-
mary judgment and remand the cause for further proceedings
consist­ent with this opinion.
Reversed and remanded for
further proceedings.
48
See Ewers, supra note 7.