Hemsley v. Langdon , 299 Neb. 464 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/18/2018 01:07 AM CDT
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HEMSLEY v. LANGDON
Cite as 299 Neb. 464
Douglas L. Hemsley, Special A dministrator of the
Estate of Paul H. Hemsley, deceased, appellant,
v. Thomas J. Langdon, M.D., et al., appellees.
___ N.W.2d ___
Filed March 30, 2018. No. S-16-1123.
1. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
the record de novo to determine whether a trial court has abdicated its
gatekeeping function under Schafersman v. Agland Coop, 262 Neb. 215,
631 N.W.2d 862 (2001).
2. ____: ____: ____. When the trial court has not abdicated its gatekeeping
function under Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d
862 (2001), an appellate court reviews the trial court’s decision to admit
or exclude the evidence for an abuse of discretion.
3. Motions for New Trial: Appeal and Error. An appellate court reviews
a denial of a motion for new trial or, in the alternative, to alter or amend
the judgment, for an abuse of discretion.
4. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
5. Expert Witnesses: Appeal and Error. The standard for reviewing the
admissibility of expert testimony is abuse of discretion.
6. Judgments: Verdicts. On a motion for judgment notwithstanding the
verdict, the moving party is deemed to have admitted as true all the rel-
evant evidence admitted that is favorable to the party against whom the
motion is directed, and, further, the party against whom the motion is
directed is entitled to the benefit of all proper inferences deducible from
the relevant evidence.
7. ____: ____. To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law and may
do so only when the facts are such that reasonable minds can draw but
one conclusion.
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8. Trial: Pretrial Procedure: Evidence: Appeal and Error. When a
motion in limine to exclude evidence is overruled, the movant must
object when the particular evidence which was sought to be excluded by
the motion is offered during trial to preserve error for appeal.
9. Malpractice: Expert Witnesses: Proof. As a general matter, expert
testimony is required to identify the applicable standard of care.
10. Courts: Expert Witnesses. Under the 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 (2001), framework, the trial court acts as a gatekeeper to ensure the
evidentiary relevance and reliability of an expert’s opinion. This entails
a preliminary assessment whether the reasoning or methodology under-
lying the testimony is valid and whether that reasoning or methodology
properly can be applied to the facts in issue.
11. Expert Witnesses. The standards of 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 (2001), require proof of the scientific validity of principles and
methodology utilized by an expert in arriving at an opinion in order to
establish the evidentiary relevance and reliability of that opinion.
12. 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.
13. Trial: Expert Witnesses. In evaluating the validity of scientific tes-
timony, a trial court considers a number of factors. These include
(1) whether the theory or technique can be, and has been, tested; (2)
whether the theory or technique has been subjected to peer review and
publication; (3) the known or potential rate of error, and the existence
and maintenance of standards controlling the technique’s operation; and
(4) the “general acceptance” of the theory or technique.
14. Trial: Rules of Evidence: Expert Witnesses. In making the preliminary
assessment of validity and applicability regarding the admissibility of
expert opinion evidence, the trial judge has the discretion both to avoid
unnecessary Neb. Rev. Stat. § 27-104 (Reissue 2016) hearings, where
the reliability of an expert’s methods is stipulated to or properly taken
for granted, and to require appropriate proceedings in the less usual or
more complex cases, where cause for questioning the expert’s reliabil-
ity arises.
15. Trial: Expert Witnesses: Records: Appeal and Error. A trial court
adequately demonstrates that it has performed its gatekeeping duty when
the record shows (1) the court’s conclusion whether the expert’s opinion
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HEMSLEY v. LANGDON
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is admissible and (2) the reasoning the court used to reach that conclu-
sion, specifically noting the factors bearing on reliability that the court
relied on in reaching its determination.
16. Motions for New Trial: Appeal and Error. A motion for new trial is to
be granted only when error prejudicial to the rights of the unsuccessful
party has occurred.
Appeal from the District Court for Douglas County: James T.
Gleason, Judge. Affirmed.
Greg Garland, of Greg Garland Law, Kathy Pate Knickrehm,
Tara DeCamp, of DeCamp Law, P.C., L.L.O., and Todd E.
Frazier, of Frazier Law Offices, P.C., for appellant.
David A. Blagg, of Cassem, Tierney, Adams, Gotch &
Douglas, and David D. Ernst, of Pansing, Hogan, Ernst &
Bachman, L.L.P., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Per Curiam.
I. INTRODUCTION
The special administrator of the estate of Paul H. Hemsley,
deceased (the Estate), brought a medical negligence action
against Thomas J. Langdon, M.D.; John T. Batter, M.D.; and
Omaha Thoracic and Cardiovascular Surgery, P.C. (collectively
the doctors), claiming they were negligent in the rendering of
medical care and treatment to Hemsley. Prior to trial, the court
overruled the Estate’s motion to exclude and motion in limine
regarding the testimony of the doctors’ expert witnesses. At a
jury trial, the district court admitted, over the Estate’s objec-
tions, testimony by several expert witnesses that Langdon and
Batter met the standard of care. The jury found for the doctors.
The Estate appeals. We affirm.
II. BACKGROUND
On September 22, 2011, Langdon performed a coronary
artery bypass on Hemsley, a 67-year-old male. During the
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procedure, Langdon placed a chest tube into Hemsley’s ante-
rior mediastinum to monitor any postoperative internal bleed-
ing and to drain blood and serum from under the breastbone.
Langdon concluded the procedure, and Hemsley remained at
the hospital to recover.
On September 25, 2011, a nurse notified Batter, the physi-
cian on duty, that fecal material was “oozing” from Hemsley’s
chest incision and that he was feverish. Hemsley was trans-
ferred to the intensive care unit with a temperature of 104.9
degrees. Batter called in another surgeon and “the heart team”
to operate on Hemsley.
During the second operation, it became apparent that
Hemsley had sustained a transverse colon injury. The physi-
cians repaired the colon and irrigated the abdomen to remove
the stool present. Batter saw stool in the abdomen, but “not a
lot.” Batter and the team “observed that there was no evidence
that any stool had gotten up from where the hole [in the colon]
was underneath the rib cage or into any tract that was there.”
As a result, Batter decided not to open Hemsley’s mediastinum
to irrigate that area for possible stool.
On September 30, 2011, Hemsley was transferred out of the
intensive care unit. The next day, he became restless, confused,
hypotensive, hypoxemic, and unresponsive and later died as a
result of acute respiratory failure due to or as a consequence
of peritonitis and of sepsis due to or as a consequence of coro-
nary artery disease.
On September 19, 2013, the Estate filed a complaint against
the doctors. In its complaint, the Estate asserted a medi-
cal malpractice claim under the Nebraska Hospital-Medical
Liability Act, Neb. Rev. Stat. §§ 44-2801 to 44-2855 (Reissue
2010). The Estate argued that due to Langdon’s and Batter’s
professional negligence, the Estate was entitled to predeath
damages, wrongful death damages, and funeral expenses.
The Estate subsequently filed a motion in limine and a
motion to exclude the testimony of the doctors’ expert wit-
nesses. At the pretrial hearing, the Estate argued that “the
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Court has . . . no information before it on what method-
ologies [the doctors’ expert witnesses] used nor how they
applied them nor how did they arrive at a logical conclusion.”
The Estate further argued that the expert witnesses testified
“about education, training, and experience,” but that under
federal and state case law (Daubert/Schafersman),1 “[t]hey
still must disclose the methodologies and . . . the reasoning
that they used.”
The district court filed an order reserving ruling on the
Estate’s motion in limine and overruling the Estate’s motion
to exclude testimony, stating that the expert opinions were not
of the kind that would be subject to a Daubert/Schafersman
test. The court eventually overruled the Estate’s motion in
limine regarding the doctors’ methodologies, which was essen-
tially a reassertion of the arguments presented in the motion
to exclude.
A jury trial was held. At trial, the Estate called as a witness
a cardiac surgeon who testified that he found a breach of the
standard of care by Langdon. The surgeon stated that “at a 99
percent certainty level, the injury was made by the clamp when
it was passed into the chest.” He testified that the malpractice
by Langdon was “the inciting event that led to [Hemsley’s]
death.” At the conclusion of its case in chief, the Estate
renewed its pretrial Schafersman motions.
At trial, the defense offered the testimony of Langdon,
Batter, and another cardiothoracic surgeon on the standard of
care. The Estate objected and renewed its Schafersman motions
when each witness was questioned on the standard of care. The
court overruled the motions.
Langdon, the cardiothoracic surgeon who performed the
initial surgery, testified that he met the applicable standard of
care and did not pierce Hemsley’s colon with the clamp during
1
See 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 (2001).
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the surgery. Langdon contended there were three possibilities
as to how Hemsley’s transverse colon was injured: First, the
“transverse colon wall was weakened” from a previous surgery
and the “clamp skinned it or nicked it . . . or just the outside
of it, enough to give it a weakness.” Second, when Langdon
opened Hemsley’s chest, “there was enough force on that if the
colon was scarred to the back of the abdominal wall . . . the
serosa of the colon . . . may have partially torn . . . and weak-
ened it.” Third, “the tube was immediately adjacent to [the
colon] and putting pressure on that part of the colon,” which
weakened the lining of the colon.
Batter, the cardiothoracic surgeon who performed the second
surgery, to irrigate out the contamination, also testified that
he met the standard of care. Finally, the other cardiothoracic
surgeon testified as an expert witness that Langdon and Batter
“very clearly met the standard of care in this case.”
A jury found in favor of the doctors. The Estate’s post-
trial motions for new trial, for judgment notwithstanding the
verdict, to strike the opinions of defense’s expert witnesses,
and to alter or amend the judgment were overruled. The
Estate appeals.
III. ASSIGNMENTS OF ERROR
The Estate assigns that the district court erred in (1) failing
to properly perform its gatekeeping function under Daubert/
Schafersman by overruling the Estate’s motion in limine and
motion to exclude the expert testimony regarding medical
opinions and methodologies used and applied by the doctors’
experts and (2) overruling the Estate’s posttrial motions, which
were based on the improper admission of the doctors’ expert
testimony that had been subject to the Estate’s motion in
limine, motion to exclude, and objection at trial based on the
Daubert/Schafersman requirements.
IV. STANDARD OF REVIEW
[1,2] An appellate court reviews the record de novo to
determine whether a trial court has abdicated its Schafersman
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gatekeeping function.2 When the trial court has not abdi-
cated its Schafersman gatekeeping function, an appellate court
reviews the trial court’s decision to admit or exclude the evi-
dence for an abuse of discretion.3
One issue on appeal asks whether standard of review expert
testimony is subject to Daubert/Schafersman. We review that
question de novo. If we conclude that it is, then we review the
facts for an abuse of discretion.
[3,4] An appellate court reviews a denial of a motion for
new trial or, in the alternative, to alter or amend the judg-
ment, for an abuse of discretion.4 A judicial abuse of discre-
tion exists when the reasons or rulings of a trial judge are
clearly untenable, unfairly depriving a litigant of a substan-
tial right and denying just results in matters submitted for
disposition.5
[5] The standard for reviewing the admissibility of expert
testimony is abuse of discretion.6
[6,7] On a motion for judgment notwithstanding the ver-
dict, the moving party is deemed to have admitted as true all
the relevant evidence admitted that is favorable to the party
against whom the motion is directed, and, further, the party
against whom the motion is directed is entitled to the benefit
of all proper inferences deducible from the relevant evidence.7
To sustain a motion for judgment notwithstanding the verdict,
the court resolves the controversy as a matter of law and may
do so only when the facts are such that reasonable minds can
draw but one conclusion.8
2
Zimmerman v. Powell, 268 Neb. 422, 684 N.W.2d 1 (2004); Schafersman
v. Agland Coop, supra note 1.
3
Zimmerman v. Powell, supra note 2.
4
InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).
5
Balames v. Ginn, 290 Neb. 682, 861 N.W.2d 684 (2015).
6
State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
7
Frank v. Lockwood, 275 Neb. 735, 749 N.W.2d 443 (2008).
8
Id.
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V. ANALYSIS
1. Motion in Limine
[8] We note that the Estate’s first assignment of error is
stated in terms of a motion in limine and motion to exclude
evidence. When a motion in limine to exclude evidence is
overruled, the movant must object when the particular evidence
which was sought to be excluded by the motion is offered dur-
ing trial to preserve error for appeal.9 We find that the Estate’s
error was adequately preserved at trial.
2. Daubert/Schafersman A nalysis
and Standard of Care
The Estate argues that the district court erred in conclud-
ing that the expert testimony regarding the standard of care
did not require a Daubert/Schafersman analysis. The doc-
tors argue that the trial court appropriately overruled the
Daubert/Schafersman objections in regard to the challenged
testimony.
(a) Standard of Care in Medical
Malpractice Cases
To establish a prima facie case of medical malpractice, a
plaintiff must show (1) the applicable standard of care, (2)
that the defendant(s) deviated from that standard of care, and
(3) that this deviation was the proximate cause of the plain-
tiff’s harm.10
The applicable standard of care, in cases such as this arising
under the Nebraska Hospital-Medical Liability Act,11 has been
established by the Legislature:
Malpractice or professional negligence shall mean that,
in rendering professional services, a health care provider
has failed to use the ordinary and reasonable care, skill,
9
State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).
10
Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 (2008).
11
§§ 44-2801 to 44-2855.
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and knowledge ordinarily possessed and used under like
circumstances by members of his profession engaged in a
similar practice in his or in similar localities. In determin-
ing what constitutes reasonable and ordinary care, skill,
and diligence on the part of a health care provider in a
particular community, the test shall be that which health
care providers, in the same community or in similar com-
munities engaged in the same or similar lines of work,
would ordinarily exercise and devote to the benefit of
their patients under like circumstances.12
The standard under § 44-2810 includes a locality focus,13 but
otherwise is consistent with the general common-law rule that
in a medical malpractice case, the standard of care is found in
the customary practices prevailing among reasonable and pru-
dent physicians.14
To establish the customary standard of care in a particular
case, expert testimony by a qualified medical professional is
normally required.15 Often, such testimony is premised on the
expert’s personal knowledge of, and familiarity with, the cus-
tomary practice among medical professionals in the same or
similar locality under like circumstances.
(b) Daubert/Schafersman Framework
[9] Neb. Rev. Stat. § 27-702 (Reissue 2016), governs the
admissibility of expert testimony and provides that the witness
must be qualified as an expert: “If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness quali-
fied as an expert by knowledge, skill, experience, training, or
12
§ 44-2810 (emphasis supplied).
13
See Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589
(2012).
14
Murray v. UNMC Physicians, 282 Neb. 260, 806 N.W.2d 118 (2011).
15
See, e.g., Simon v. Drake, 285 Neb. 784, 829 N.W.2d 686 (2013); Thone v.
Regional West Med. Ctr., supra note 10.
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education, may testify thereto in the form of an opinion or
otherwise.” As a general matter, expert testimony is required to
identify the applicable standard of care.16
[10-12] In Schafersman v. Agland Coop,17 we adopted
the framework set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc.,18 and its progeny, Kumho Tire Co. v.
Carmichael 19 and General Electric Co. v. Joiner.20 Under the
Daubert/Schafersman framework, the trial court acts as a
gatekeeper to ensure the evidentiary relevance and reliability
of an expert’s opinion.21 This entails a preliminary assess-
ment whether the reasoning or methodology underlying the
testimony is valid and whether that reasoning or methodology
properly can be applied to the facts in issue.22 The Daubert/
Schafersman standards require proof of the scientific valid-
ity of principles and methodology utilized by an expert in
arriving at an opinion in order to establish the evidentiary
relevance and reliability of that opinion.23 The purpose of this
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.’”24
[13] The Court in Daubert also set out a list of consider-
ations that a trial court may use to evaluate the validity of
16
Thone v. Regional West Med. Ctr., supra note 10. See Simon v. Drake,
supra note 15.
17
Schafersman v. Agland Coop, supra note 1.
18
Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 1.
19
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed.
2d 238 (1999).
20
General Electric Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512, 139 L. Ed.
2d 508 (1997).
21
Id.
22
Id.
23
Schafersman v. Agland Coop, supra note 1.
24
State v. Herrera, 289 Neb. 575, 588, 856 N.W.2d 310, 324 (2014).
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scientific testimony. These include (1) whether the theory or
technique can be, and has been, tested; (2) whether the theory
or technique has been subjected to peer review and publica-
tion; (3) the known or potential rate of error, and the exis-
tence and maintenance of standards controlling the technique’s
operation; and (4) the “‘general acceptance’” of the theory
or technique.25
[14,15] In making the preliminary assessment, the trial
judge has the discretion both to avoid unnecessary Neb. Rev.
Stat. § 27-104 (Reissue 2016) hearings, where the reliability
of an expert’s methods is stipulated to or properly taken for
granted, and to require appropriate proceedings in the less
usual or more complex cases, where cause for questioning
the expert’s reliability arises.26 A trial court adequately dem-
onstrates that it has performed its gatekeeping duty when the
record shows (1) the court’s conclusion whether the expert’s
opinion is admissible and (2) the reasoning the court used to
reach that conclusion, specifically noting the factors bear-
ing on reliability that the court relied on in reaching its
determination.27
In Kumho Tire Co., the U.S. Supreme Court discussed how
Daubert 28 applies to the testimony of experts who are not sci-
entists and concluded that the trial judge’s general gatekeeping
obligation also applies to testimony based on technical and
other specialized knowledge.29 The Court further held that
a trial court may consider one or more of the more specific
factors that Daubert mentioned when doing so will help
determine that testimony’s reliability. But, as the Court
stated in Daubert, the test of reliability is “flexible,” and
25
Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 1, 509 U.S. at
594. Accord Schafersman v. Agland Coop, supra note 1.
26
Schafersman v. Agland Coop, supra note 1.
27
Id.
28
Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 1.
29
Kumho Tire Co. v. Carmichael, supra note 19.
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Daubert’s list of specific factors neither necessarily nor
exclusively applies to all experts or in every case.30
Furthermore, the Court stated that
[o]ur emphasis on the word “may” thus reflects Daubert’s
description of the [Fed. R. Evid.] 702 inquiry as “a flex-
ible one.” . . . Daubert makes clear that the factors it
mentions do not constitute a “definitive checklist or
test.” . . . And Daubert adds that the gatekeeping inquiry
must be “‘tied to the facts’” of a particular “case.”31
The Court stated that “‘[t]he factors identified in Daubert
may or may not be pertinent in assessing reliability, depending
on the nature of the issue, the expert’s particular expertise, and
the subject of his testimony.’”32 The Court further emphasized
that the factors should not apply even in every instance in
which the reliability of scientific testimony is challenged,
but can help to evaluate the reliability even of experience-
based testimony.33
In Rankin v. Stetson,34 we applied the Daubert/Schafersman
factors to expert testimony that the defendant failed to meet
the standard of care in the treatment of the plaintiff’s spinal
cord injury when the plaintiff did not receive surgery within
72 hours of the injury. We held that it was not an abuse of
discretion for the district court to reject the expert’s testimony,
reasoning that the district court acted as a gatekeeper to ensure
that the reasoning or methodology underlying the expert tes-
timony was valid and properly applied. We explained that
because the expert witness failed to disclose the underlying
facts or data for his opinions, he was not qualified to testify to
his opinion under § 27-702.35
30
Id., 526 U.S. at 141.
31
Id., 526 U.S. at 150.
32
Id.
33
Kumho Tire Co. v. Carmichael, supra note 19.
34
Rankin v. Stetson, 275 Neb. 775, 749 N.W.2d 460 (2008).
35
Id.
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In Zimmerman v. Powell,36 we held that the district court
abdicated its gatekeeping duty because it failed to explain
its reasoning for overruling a Daubert/Schafersman motion.
The plaintiff’s expert witness testified, over the defendant’s
objection, to data that the expert had derived from a computer
program. The district court overruled the objection, but did not
explain why it had determined that the expert’s testimony was
admissible under Daubert/Schafersman. We stated that a trial
court, when faced with such an objection, “‘must adequately
demonstrate by specific findings on the record that it has per-
formed its duty as gatekeeper’” and in that case had failed to
do so.37 Nevertheless, we found that in that instance, the dis-
trict court’s failure to perform its gatekeeping duties did not
result in prejudice to the defendant. We held that the court’s
failure to conduct its gatekeeping function did not taint the
issue of the defendant’s damages, and we modified the judg-
ment accordingly.
It is clear that in Stetson, a medical malpractice case, we
applied Daubert/Schafersman to standard of care testimony.
Furthermore, as “‘specialized knowledge,’” expert testimony
pertaining to the standard of care is subject to the trial judge’s
general gatekeeping obligation.38
(c) Court Applied Daubert/Schafersman
to Doctors’ Expert Testimony
At the pretrial motion hearing, the Estate made a motion to
exclude the testimony of the doctors’ expert witnesses on the
basis that the expert witnesses failed to provide the method-
ologies used in reaching their expert opinions on the standard
of care and failed to explain the application of such method-
ologies. The court noted on the record that the witnesses were
“not testifying as to some novel form of science, medicine,
36
Zimmerman v. Powell, supra note 2.
37
Id. at 430, 684 N.W.2d at 9.
38
See Rankin v. Stetson, supra note 34, 275 Neb. at 780, 749 N.W.2d at 465.
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engineering, anything like that,” but that the testimony regard-
ing the standard of care was “straightforward” and was based
on the witnesses’ personal knowledge:
[M]y view here is that this is not the type of opinion or
science that is subject to a [Daubert/Schafersman] test.
For that reason, your motion will be overruled.
....
My view of [Daubert] is it applies to novel or sci-
ence that is not settled. That is not — in other words, the
standard of care is a settled method of science. How a
standard of care is arrived at is a settled method. Every
expert in the country would give you the same basis for
determining what is the standard of care. Just what you
said when you were making your argument.
So that is how it’s arrived at. All experts do it the
same way.
....
. . . I don’t think it’s an exception to [Daubert]. . . .
....
What . . . I see before me based on the evidence
you’ve provided for the purpose of this hearing is a
straightforward medical opinion. And that is not, in my
opinion, at this point subject to [Daubert].
Contrary to the Estate’s characterization on appeal, the
trial court did not find that expert testimony on the standard
of care in medical malpractice cases is exempt from Daubert/
Schafersman analysis. As is evident from the above excerpt
from the pretrial motion hearing, the trial judge made several
statements regarding whether Daubert/Schafersman applied.
The Estate takes one of those statements out of the broader
context of the judge’s pretrial hearing statements and ulti-
mate findings to argue that the judge misstated and misap-
plied our Daubert/Schafersman jurisprudence. After review,
however, we interpret the judge’s statements to be consistent
with our previous case law and his judicial gatekeeping
responsibilities.
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The trial court appropriately focused on both the nature
of the challenged testimony and the objections raised by the
Estate. Here, the witnesses’ testimony on the standard of care
was not based on clinical practice guidelines, physician sur-
veys, or any other scientific methodology or theory. Rather,
it was empirical testimony based on their personal knowledge
of the ordinary care, skill, and diligence commonly exercised
by cardiac surgeons in Nebraska under similar circumstances
and the actual care, skill, and diligence they exercise dur-
ing operations.
Moreover, we understand the trial court’s ruling to have
been premised on the Estate’s failure to sufficiently call into
question the reliability or validity of the testimony being
challenged. To raise a Daubert/Schafersman objection, the
initial task falls on the party opposing expert testimony to suf-
ficiently call into question the reliability or validity of some
aspect of the anticipated testimony.39 Only after the factual
basis, data, principles, methods, or their application has been
sufficiently called into question does the proponent of the
expert testimony have the burden of showing that the testi-
mony is reliable.40
We find no merit to the Estate’s contention that the district
court abandoned its gatekeeping function by failing to apply
Daubert/Schafersman; nor do we find merit in the Estate’s
contention that the district court failed to assess the method-
ology underlying the testimony and whether the methodol-
ogy could properly be applied to the facts at issue. The court
adequately demonstrated “‘by specific findings on the record’”
that it performed its duty as gatekeeper.41
39
State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).
40
State v. Mason, 271 Neb. 16, 709 N.W.2d 638 (2006).
41
Zimmerman v. Powell, supra note 2, 268 Neb. at 430, 684 N.W.2d at 9.
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(d) Doctors’ Expert Testimony Met
Daubert/Schafersman Standard
Next, we turn to whether the Daubert/Schafersman stan-
dard was met. The Estate argues that the court failed to note
factors bearing on reliability and that while education is rel-
evant under Daubert/Schafersman, the reasoning and method-
ology used to form an opinion is also required. Neither party
disputes the professional qualifications of the other party’s
expert witnesses.
The testimony offered by the expert witnesses was cer-
tainly relevant to the issue at trial. They testified to their
education, training, and experience which formed the basis
of their opinions as to the standard of care. Their opinions
as to the standard of care were helpful to the jury only if
the jury understood each expert’s qualifications and experi-
ence. Langdon, a cardiothoracic surgeon, testified that he was
trained extensively in general surgery and that he completed
a board certification in general surgery and thoracic surgery.
Langdon stated that he is licensed in Nebraska and Iowa and
has performed “six or 7,000 open heart operations.” Langdon
also testified that he had been consulted by physicians who
were seeking advice on the proper treatment of patients. In
addition, Langdon’s curriculum vitae was submitted into evi-
dence. Langdon then testified, over objection, that he met the
standard of care.
Similarly, Batter, a cardiothoracic surgeon, testified to his
education, training, and experience. Batter testified that he is
board certified and licensed in Nebraska. Batter explained that
he has been “doing this since 1995” and that he “probably
averaged 250 heart surgeries a year.” Batter then testified, over
objection, that he met the standard of care. The court stated
that the Estate’s objection was overruled “for the same reason
it was previously overruled prior to trial.”
We find no error in the district court’s determination that
the testimony provided by the witnesses would assist the
jury in understanding and determining the facts at issue in
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this case. As noted above, the Daubert/Schafersman inquiry
is “‘flexible.’” 42 The Daubert/Schafersman standard is not
“‘“some magical incantation.”’” 43 Depending on the nature of
the testimony offered, Daubert factors “‘may or may not be
pertinent in assessing reliability.’” 44 And “whether Daubert’s
specific factors are, or are not, reasonable measures of reli-
ability in a particular case is a matter that the law grants the
trial judge broad latitude to determine.” 45 We do not mean that
trial courts must always determine the admissibility of standard
of care testimony in a medical malpractice case by analyzing
all of the Daubert/Schafersman factors. Instead, depending on
the nature of the testimony offered and the objections thereto,
Daubert factors “‘may or may not be pertinent in assess-
ing reliability.’” 46
We reject the Estate’s interpretation of Zimmerman,47 that
the district court similarly abdicated its gatekeeping duty in
this case by failing to explain its reasoning and methodology.
We side with those jurisdictions that have found that Daubert
factors apply to expert testimony on the standard of care.48
This should not be misconstrued as signaling some sort of
change in our standard of care jurisprudence. We are aware
some commentators have suggested that due to scientific and
technological advancements in the practice of medicine, a
standard of care based on local custom and ordinary practice is
42
Kumho Tire Co. v. Carmichael, supra note 19, 526 U.S. at 150.
43
Zimmerman v. Powell, supra note 2, 268 Neb. at 430, 684 N.W.2d at 9.
44
Kumho Tire Co. v. Carmichael, supra note 19, 526 U.S. at 150.
45
Id., 526 U.S. at 153.
46
Id. See Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 1.
47
Zimmerman v. Powell, supra note 2.
48
Dickenson v. Cardiac & Thoracic Surgery TN, 388 F.3d 976 (6th Cir.
2004); Sullivan v. U.S. Department of Navy, 365 F.3d 827 (9th Cir. 2004);
Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396 (3d Cir. 2003);
Mitchell v. U.S., 141 F.3d 8 (1st Cir. 1998); Seifert v. Balink, 372 Wis. 2d
525, 888 N.W.2d 816 (2017).
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outdated and should be replaced with a Daubert-style analysis
of scientific evidence.49 But in Nebraska, where the applicable
standard of care testimony is statutory, such a policy debate
is properly reserved for the Legislature, not the courts. For
that reason, in applying the Daubert/Schafersman factors to
standard of care testimony in a medical malpractice case, trial
courts should be mindful not to supplant the customary care
standard required by § 44-2810. As this court observed in
Murray v. UNMC Physicians,50 the standard of care in medi-
cal malpractice cases cannot be altered for public policy rea-
sons: “We cannot depart from the customary standard of care
on policy grounds, even if it is subject to criticism, because
the standard of care is defined by statute and public policy is
declared by the Legislature.”
The record shows the trial court considered the applicabil-
ity of the Daubert/Schafersman factors, but found they offered
little assistance in determining the reliability of the witnesses’
personal knowledge of the customary standard of care and
their personal knowledge of the actions they performed dur-
ing the surgeries. And because there was no objection to the
qualifications of the witnesses to testify as experts, and the
Estate offered nothing else that called into question the reli-
ability of their testimony, the court overruled the Estate’s
objections and allowed the testimony. Therefore, we find that
the district court did not abuse its discretion in admitting the
challenged testimony.
49
See, e.g., Nicole Hines, Why Technology Provides Compelling Reasons
to Apply a Daubert Analysis to the Legal Standard of Care in Medical
Malpractice Cases, 2006 Duke L. & Tech. Rev. 18 (2006); Carter L.
Williams, Evidence-Based Medicine in the Law Beyond Clinical Practice
Guidelines: What Effect Will EBM Have on the Standard of Care?, 61
Wash. & Lee L. Rev. 479 (2004); Michelle M. Mello, Using Statistical
Evidence to Prove the Malpractice Standard of Care: Bridging Legal,
Clinical, and Statistical Thinking, 37 Wake Forest L. Rev. 821 (2002).
50
Murray v. UNMC Physicians, supra note 14, 282 Neb. at 271, 806 N.W.2d
at 126.
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3. Estate’s Posttrial Motions
[16] The Estate argues that the district court abused its dis-
cretion in overruling the motion for a new trial, motion for
judgment notwithstanding the verdict, and motion to strike the
opinions of the doctors’ expert witnesses. The doctors contend
that the district court properly exercised its discretion with
regard to the admission of the standard of care testimony. A
motion for new trial is to be granted only when error preju-
dicial to the rights of the unsuccessful party has occurred.51
Because we hold that the district court did not err in admitting
the testimony, we also hold that the district court did not abuse
its discretion in overruling the Estate’s posttrial motions.
The Estate’s second assignment of error is without merit.
VI. CONCLUSION
We conclude that the district court did not fail to perform
its Daubert/Schafersman gatekeeping function. The district
court therefore did not err in overruling the Estate’s posttrial
motions, and its judgment is affirmed.
A ffirmed.
K elch, J., not participating in decision.
Wright, J., not participating.
51
Farmers & Merchants Bank v. Grams, 250 Neb. 191, 548 N.W.2d 764
(1996).