Yagodinski v. Sutton , 309 Neb. 179 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/08/2021 09:09 AM CDT
- 179 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179Gina Yagodinski, appellant,
v. Brad Sutton, appellee.
___ N.W.2d ___
Filed May 14, 2021. No. S-20-317.
1. Trial: Expert Witnesses: Appeal and Error. There is no exact stan-
dard for fixing the qualifications of an expert witness, and a trial court
is allowed discretion in determining whether a witness is qualified to
testify as an expert. Unless the court’s finding is clearly erroneous, such
a determination will not be disturbed on appeal.
2. ____: ____: ____. An appellate court reviews de novo whether the trial
court applied the correct legal standards for admitting an expert’s testi-
mony, and it reviews for abuse of discretion how the trial court applied
the appropriate standards in deciding whether to admit or exclude an
expert’s testimony.
3. Trial: Expert Witnesses. Whether a witness is qualified as an expert is
a preliminary question for the trial court.
4. Health Care Providers: Expert Witnesses: Licenses and Permits:
Juries. A duly licensed and practicing chiropractor is competent to
testify as an expert witness within the scope of his or her knowledge
according to his or her qualifications in the field of chiropractics, and
the weight to be accorded the testimony is for the jury.
5. Health Care Providers: Expert Witnesses: Licenses and Permits. A
licensed chiropractor will generally be qualified to testify as an expert
on any matter that is within the scope of chiropractic practice and licen-
sure in Nebraska.
6. Health Care Providers: Public Health and Welfare. The general pur-
pose of the Uniform Credentialing Act is to protect the public health,
safety, and welfare by credentialing persons who provide health and
health-related services, as well as developing and enforcing standards
for such services.
7. Health Care Providers: Statutes. Whether a particular diagnosis, or
diagnostic method, is within the authorized scope of chiropractic prac-
tice is primarily a question of statutory interpretation.
- 180 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 1798. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
9. Statutes: Appeal and Error. To give effect to all parts of a statute, an
appellate court will attempt to reconcile different provisions so they are
consistent, harmonious, and sensible, and will avoid rejecting as super-
fluous or meaningless any word, clause, or sentence.
10. Health Care Providers: Legislature: Courts. The Legislature has
circumscribed the diagnostic and treatment methods available to
licensed chiropractors, and courts should not, by judicial interpretation,
expand the practice of chiropractic beyond the scope established by
the Legislature.
11. Statutes: Words and Phrases. Generally, when a statute does not
define a term or phrase, courts will give the phrase its ordinary meaning.
12. Health Care Providers. The diagnostic methods described in Neb.
Rev. Stat. § 38-805(1)(a) (Reissue 2016) are necessarily confined to
assessing patients for the purpose of determining appropriate chiroprac-
tic care.
13. Health Care Providers: Expert Witnesses: Licenses and Permits:
Legislature: Courts. When an expert is a licensed health professional
offering testimony about a patient, it is entirely appropriate for a court
to consider, as a factor affecting qualification, the statutory scope of
practice established by the Legislature.
14. Health Care Providers. A licensed chiropractor cannot expand the
scope of chiropractic practice in Nebraska merely through additional
education, training, and professional affiliation.
15. Health Care Providers: Legislature. The scope of chiropractic prac-
tice has been established by the Legislature, and only that body has the
authority to expand it.
16. Health Care Providers: Expert Witnesses: Licenses and Permits.
When a licensed, credentialed health professional seeks to offer an
expert opinion regarding a patient’s diagnosis, it is entirely appropriate
to limit such expert testimony to matters within the scope of the expert’s
professional licensure and credentialing.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Affirmed.
James E. Harris and Britany S. Shotkoski, of Harris &
Associates, P.C., L.L.O., for appellant.
- 181 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179Thomas A. Grennan and Eric J. Sutton, of Gross & Welch,
P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
The primary question in this appeal is whether a licensed
chiropractor in Nebraska was qualified to offer expert opinion
testimony that his patient sustained a traumatic brain injury
in a motor vehicle collision. The district court excluded such
opinion testimony on several grounds, including that the opin-
ion was outside the scope of chiropractic practice and licensure
in Nebraska. We affirm.
I. BACKGROUND
In 2011, Gina Yagodinski’s vehicle was struck from behind
by a vehicle operated by Brad Sutton. In 2015, Yagodinski
filed a lawsuit against Sutton in the district court for Douglas
County. Her operative complaint alleged the collision was
caused by Sutton’s negligence and resulted in Yagodinski’s
sustaining “permanent and painful injuries which have been
diagnosed as persistent/recurrent neck, thoracic and spine pain,
and headaches.” The complaint sought to recover both spe-
cial and general damages. Eventually, Yagodinski dropped her
claim for special damages and proceeded to trial seeking only
general damages.
During the pendency of this action, Yagodinski was referred
to Dr. John McClaren, a licensed chiropractor in La Vista,
Nebraska. McClaren examined Yagodinski and diagnosed her
with “vestibular post-concussive syndrome,” which he con-
cluded was caused by the 2011 collision. The parties generally
describe this diagnosis as an opinion that Yagodinski sustained
a mild traumatic brain injury in the collision.
The defense moved in limine to preclude McClaren
from offering any opinion testimony regarding his diagno-
sis of a traumatic brain injury, arguing generally that such
- 182 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179testimony was inadmissible under the Nebraska Evidence
Rules and the standards set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 1 and Schafersman v. Agland Coop 2
(Daubert/Schafersman). At the hearing on the motion in limine,
both parties offered evidence, which we summarize briefly
now and discuss in more detail later.
Yagodinski offered evidence that in addition to McClaren’s
chiropractic education and training, he pursued specific edu-
cation and training in the diagnosis of traumatic brain injury,
and that he holds himself out as a “chiropractic neurolo-
gist.” The defense offered evidence from a licensed medical
neurologist that the methods used by McClaren to diagnose
traumatic brain injury were not generally accepted by medi-
cal neurologists.
In a written order, the trial court sustained the motion in
limine and precluded McClaren from testifying that Yagodinski
sustained a traumatic brain injury in the collision. Citing to this
court’s opinions in Floyd v. Worobec 3 and Fries v. Goldsby, 4
the court generally reasoned that McClaren, as a licensed chiro­
practor, was qualified to testify to matters within the scope of
his chiropractic licensure. But the court found McClaren was
not qualified to testify about the diagnosis and treatment of
traumatic brain injuries, reasoning that such injuries were out-
side the scope of chiropractic care in Nebraska. The court also
found that McClaren’s diagnosis of traumatic brain injury was
inadmissible under Daubert/Schafersman.
Yagodinski moved the court to reconsider its ruling and to
allow McClaren to offer his opinion that Yagodinski sustained
a traumatic brain injury in the collision. The court overruled
that request, and the matter proceeded to a jury trial.
1
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993).
2
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
3
Floyd v. Worobec, 248 Neb. 605, 537 N.W.2d 512 (1995).
4
Fries v. Goldsby, 163 Neb. 424, 80 N.W.2d 171 (1956).
- 183 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 1791. Trial
At trial, in addition to her own testimony, Yagodinski
offered the testimony of her parents, a coworker, and her hus-
band. These witnesses testified, summarized, that Yagodinski
was athletic and active before the collision, but experienced
pain and discomfort after the collision and was generally
less active.
Both parties offered expert testimony at trial. Yagodinski
called McClaren, who testified that Yagodinski was referred
to him approximately 51⁄2 years after the collision. McClaren
obtained a history from Yagodinski and reviewed her prior
treatment records which, according to McClaren, showed that
she reported neck stiffness and headaches a few hours after the
collision. McClaren testified those symptoms improved with
chiropractic physiotherapy, but Yagodinski continued to experi-
ence headaches, neck pain, and back pain. Based on his expe­
rience, education, and training, McClaren opined to a reason-
able degree of chiropractic certainty that Yagodinski sustained
cervical whiplash injuries as a result of the collision and that
her residual symptoms were permanent.
At the conclusion of McClaren’s testimony, and outside the
presence of the jury, Yagodinski’s counsel made an offer of
proof. The judge left the courtroom during the offer of proof,
with the parties’ consent. Counsel for Yagodinski made a
record that, if permitted, McClaren would have testified about
the diagnostic tests he performed on Yagodinski and would
have offered his opinion that she sustained a mild traumatic
brain injury caused by the 2011 collision. Defense counsel
objected to the offer of proof, and both parties offered exhibits
to support their respective positions. The trial record contains
no rulings on the offer of proof.
When trial resumed, the defense offered the deposition tes-
timony of Dr. Joel Cotton, who described himself as a physi-
cian and board-certified neurologist practicing in Nebraska.
Cotton testified that he reviewed Yagodinski’s hospital and
medical records, her acupuncture and massage records, and
- 184 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179her chiropractic records. He also reviewed records from the
sports club where Yagodinski participated in kickboxing and
some of her employment records. Based on his review of
those records and his training, knowledge, and experience,
Cotton opined to a reasonable degree of medical certainty that
Yagodinski experienced a “temporary cervical sprain or strain”
as a result of the collision, but did not suffer any permanent
injury. In Cotton’s opinion, Yagodinski reached maximum
medical improvement within about 2 months after the colli-
sion, and any treatment she sought after that point was unre-
lated to the collision.
The jury returned a general verdict in favor of Yagodinski in
the amount of $5,000. The trial court entered judgment in that
amount the following day.
2. First Appeal
Yagodinski appealed the judgment, assigning error to the
trial court’s exclusion of McClaren’s diagnosis regarding mild
traumatic brain injury. The appellate briefing generally treated
the offer of proof as though it had been considered and over-
ruled by the trial court, but in an unpublished memorandum
opinion, we found the record did not support such an assump-
tion. We expressed concern that the judge’s absence from
the courtroom during the offer of proof prevented a ruling
on the offer and defeated a primary purpose of the exercise,
which was to provide the trial court an opportunity to recon-
sider its preliminary evidentiary ruling in the context of all
the evidence. 5
5
See, State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013) (after prelim­
inary evidentiary ruling, requiring renewal of objection and offer of proof
at trial provides important procedural safeguards against reversible error);
State v. Kramer, 238 Neb. 252, 469 N.W.2d 785 (1991) (purpose of
offer of proof is to bring attention to substance and purpose of proffered
evidence so both trial court and appellate court can determine whether
exclusion of evidence was error).
- 185 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179We also explained that an appellate court reviews for an
abuse of discretion a trial court’s ruling on whether to admit
or exclude expert testimony 6 and that we were not able to con-
duct such a review because we could not tell from the record
whether a ruling had been made on the offer of proof and, if so,
the basis for such ruling. We therefore reversed, and remanded
with instructions that the court make the necessary rulings to
facilitate appellate review. Specifically, we directed:
Upon remand, the court shall determine whether
McClaren is qualified as an expert and if so, whether the
proffered opinions are within the scope of that expertise.
If so, the district court shall determine, on the exist-
ing record, whether the excluded testimony, in whole
or in part, is scientifically valid and reliable under the
Daubert/Schafersman analysis. . . . If, after making the
necessary specific findings, the court concludes that none
of McClaren’s excluded testimony is admissible, the court
shall reinstate the judgment upon the jury’s verdict. If the
court concludes that any or all of the excluded testimony
is admissible, the court shall order a new trial only on the
issue of damages.
3. Proceedings on Remand
On remand, the trial court received into evidence the exhib-
its previously offered in support of, and in opposition to,
Yagodinski’s offer of proof. Additionally, it received the entire
bill of exceptions from trial and it took judicial notice of the
Nebraska statutes and administrative regulations governing
chiropractic licensure, and the scope of chiropractic practice, in
Nebraska. As relevant to the issues on appeal, we summarize
the evidence considered by the trial court on remand.
(a) McClaren’s Deposition and Affidavit
In his discovery deposition, McClaren described himself
as “a board-certified chiropractic neurologist.” He obtained
6
See Larsen v. 401 Main St., 302 Neb. 454, 923 N.W.2d 710 (2019).
- 186 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179this certification in 2005 through the American Chiropractic
Neurology Board, which required a minimum of 300 hours
of postgraduate education in neurology and a board examina-
tion. To obtain the required education in neurology, McClaren
attended the Carrick Institute; an affidavit from Dr. Frederick
Carrick was received as part of Yagodinski’s offer of proof
and is discussed later. In 2014, McClaren performed clinical
rounds at the Carrick Brain Center, and in 2015, McClaren
completed a 375-hour fellowship degree in “Brain Injury and
Rehabilitation” from the American Board of Brain Injury
and Rehabilitation.
McClaren testified that to diagnose Yagodinski’s brain injury,
he performed a series of optical examinations using various
instruments, including a saccadometer. McClaren described the
saccadometer as a “headgear with a laser” that “measures the
amplitude, latency, and position of the eye when it moves.”
He also performed “static visual acuity test[s],” which he
described as tests “you would do at the conventional eye doc-
tor,” and he used a tablet computer to administer “a neuro­
psychological battery” developed by the Cleveland Clinic to
diagnose concussion. McClaren represented that all the test-
ing methodologies and devices he used were “formulated for
medical purposes,” and he described it as “standard testing
that’s done by medical professionals and allied health profes-
sionals.” McClaren testified that his testing showed Yagodinski
had “issues with the visual motor system compared to the
vestibular system” and the “eye movements in her dynamic
visual acuity weren’t appropriate with someone who has per-
fect neurology in those areas.” Based on the results of his test-
ing of Yagodinski, his training, and his education, McClaren
diagnosed Yagodinski with “vestibular post-concussive syn-
drome,” a condition McClaren described as a mild traumatic
brain injury. McClaren opined to a reasonable degree of chiro-
practic probability that the condition was caused by the 2011
collision. McClaren was not asked whether he provided any
chiropractic treatment to address Yagodinski’s brain injury,
- 187 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179nor did he testify that chiropractic treatment could address such
an injury. McClaren testified that he occasionally refers chiro-
practic patients to medical neurologists, but he did not consider
such a referral for Yagodinski.
(b) Affidavit of Carrick
To support McClaren’s qualification as an expert in trau-
matic brain injuries, Yagodinski also offered the affidavit of
Carrick, who described himself as a “board-certified chiroprac-
tic neurologist and a board-certified fellow in several special-
ties related to neurology, brain injuries, and rehabilitation in
both the United States and Europe.” It was Carrick’s opinion
that “Chiropractic Physicians in the state of Nebraska who are
board-certified in Neurology are qualified and able to provide
opinions and treatment to patients who have suffered a trau-
matic brain injury.”
(c) Affidavit of Lorn Miller
Yagodinski also offered the affidavit of Dr. Lorn Miller, who
described himself as a “medical doctor and board-­certified neu-
rologist.” Miller averred that he is familiar with the academic
credentials for chiropractic neurology and that he “recognize[d]
[McClaren’s] expertise and bona fide specialty training in his
profession as a chiropractic neurologist and his interdiscipli­
nary certification, qualifications, training and expertise in trau-
matic brain injury and rehabilitation.” Miller also offered the
opinion that McClaren was qualified to render an opinion that
Yagodinski sustained a concussion and has vestibular post­
concussion syndrome.
(d) Deposition and Affidavit of Cotton
The defense opposed Yagodinski’s offer of proof by offering
the affidavit of Cotton and portions of his deposition testimony
that had been redacted for use at trial. Cotton testified that
he observed nothing in Yagodinski’s medical or chiroprac-
tic records to suggest she sustained a traumatic brain injury
in the 2011 collision. Cotton also testified that he reviewed
- 188 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179McClaren’s report of the diagnostic methods McClaren used
to diagnose Yagodinski with a brain injury and that in Cotton’s
opinion, McClaren’s report made “absolutely no sense.” Cotton
generally averred that McClaren’s testing and conclusions were
unreliable, and Cotton specifically averred that the ocular
tests McClaren used to diagnose Yagodinski’s concussion were
not generally accepted within the neurological community or
among medical neurologists.
4. Ruling on Offer of Proof
In a lengthy order, the trial court discussed the offer of proof
evidence considered on remand and made specific findings
under the Daubert/Schafersman framework. The court found
that diagnosing a brain injury is “outside the qualifications
and expertise of a chiropractor” under the Nebraska statutes
governing the scope of chiropractic practice. It further found
that McClaren’s diagnostic methodology, including the use of
various optical devices, fell outside the scope of chiropractic
practice. The court acknowledged McClaren’s additional edu-
cation and training in traumatic brain injuries, but concluded it
did not enable McClaren to testify as an expert on matters that
were beyond the scope of chiropractic practice in Nebraska.
The court also analyzed McClaren’s methodology and reason-
ing under Daubert/Shafersman and concluded it was neither
scientifically valid nor reliable.
The trial court therefore overruled the offer of proof and
confirmed its finding that McClaren’s proffered opinion diag-
nosing a traumatic brain injury was inadmissible. The court
reinstated the judgment on the jury’s verdict, and Yagodinski
again appealed. We moved the case to our docket on our
own motion.
II. ASSIGNMENTS OF ERROR
Yagodinski assigns multiple errors, which we consolidate
and restate into one: The trial court erred when it restricted
the scope of McClaren’s expert testimony to exclude his
- 189 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179opinion that Yagodinski sustained a traumatic brain injury in
the 2011 collision.
III. STANDARD OF REVIEW
[1] There is no exact standard for fixing the qualifications
of an expert witness, and a trial court is allowed discretion
in determining whether a witness is qualified to testify as an
expert. 7 Unless the court’s finding is clearly erroneous, such a
determination will not be disturbed on appeal. 8
[2] An appellate court reviews de novo whether the trial
court applied the correct legal standards for admitting an
expert’s testimony, and it reviews for abuse of discretion how
the trial court applied the appropriate standards in deciding
whether to admit or exclude an expert’s testimony. 9
IV. ANALYSIS
Neb. Evid. R. 702 governs the admissibility of expert testi-
mony and provides: “If scientific, technical, or other special-
ized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or
otherwise.” 10 Under rule 702, “a witness can testify concerning
scientific, technical, or other specialized knowledge only if the
witness is qualified as an expert.” 11
[3] Whether a witness is qualified as an expert is a pre-
liminary question for the trial court. 12 Here, the trial court
found that McClaren, a licensed chiropractor in Nebraska, was
qualified to offer an expert opinion that his patient sustained
7
State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009). See, also, Carlson v.
Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004).
8
Daly, supra note 7.
9
Larsen, supra note 6.
10
Neb. Rev. Stat. § 27-702 (Reissue 2016).
11
Carlson, supra note 7, 267 Neb. at 409, 675 N.W.2d at 102.
12
Id.- 190 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179a cervical whiplash injury in the collision, but was not quali-
fied to offer an expert opinion that she sustained a traumatic
brain injury.
In this appeal, Yagodinski’s arguments regarding McClaren’s
qualifications fall into two general categories. First, she argues
the statutory scope of chiropractic practice in Nebraska is
broad enough to include the diagnosis of traumatic brain injury,
using the diagnostic methods employed by McClaren. Second,
she argues that McClaren is a “chiropractic neurologist” with
specialized education and training in the diagnosis of traumatic
brain injuries, and therefore is qualified to testify as an expert
on brain injuries. We address these arguments in order.
1. Scope of Chiropractic Practice
and Diagnostic Methods
Used by McClaren
[4,5] It is well settled that “a duly licensed and practicing
chiropractor is competent to testify as an expert witness within
the scope of his [or her] knowledge according to his [or her]
qualifications in the field of chiropractics, and the weight of
his [or her] testimony is a question for the jury.” 13 As such, a
licensed chiropractor will generally be qualified to testify as
an expert on any matter that is within the scope of chiropractic
practice and licensure in Nebraska. 14
As it regards McClaren’s qualification to offer expert tes-
timony that his patient sustained a traumatic brain injury, the
primary question is whether such a diagnosis falls within the
scope of chiropractic practice. 15 To answer that question, we
13
Fries, supra note 4, 163 Neb. at 435, 80 N.W.2d at 178. See, also, Floyd,
supra note 3 (licensed chiropractor qualified to testify to matters within
scope of such practice); Rodgers v. Sparks, 228 Neb. 191, 421 N.W.2d 785(1988) (licensed chiropractor may testify as expert witness within scope of
qualifications in field of chiropractic).
14
See id.15
See Rodgers, supra note 13, 228 Neb. at 197, 421 N.W.2d at 789 (framing
qualification determination as “whether [expert opinions on] causation and
permanency are within the scope of the field of chiropractic”).
- 191 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179turn first to the legislative acts which govern the practice of
chiropractic in Nebraska.
The practice of chiropractic in Nebraska has been statu-
torily regulated for almost a century. 16 Before the enactment
of laws providing for chiropractic licensure and regulation,
professionals practicing chiropractic were considered to be
engaged in the unauthorized practice of medicine. 17 Currently,
the Legislature regulates the scope of chiropractic practice
through the Uniform Credentialing Act 18 and the Chiropractic
Practice Act. 19 There is considerable variation in the way each
state defines the scope of chiropractic practice, so opinions
from other jurisdictions offer only limited guidance when con-
sidering the scope of chiropractic in Nebraska. 20
[6] The Legislature has explained the general purpose
of the Uniform Credentialing Act is to protect the public
health, safety, and welfare by credentialing persons who pro-
vide health and health-related services, as well as develop-
ing and enforcing standards for such services. 21 The Uniform
Credentialing Act governs more than 30 different health-related
professions, 22 including chiropractors. 23 As a general matter,
16
See 1927 Neb. Laws, ch. 167 § 76, p. 474.
17
See Harvey v. State, 96 Neb. 786, 148 N.W. 924 (1914) (affirming chi­ro­
practor’s conviction for unauthorized practice of medicine, noting Nebraska
Legislature had not enacted laws providing for the licensure and regulation
of chiropractors).
18
See Neb. Rev. Stat. §§ 38-101 to 38-1,145 (Reissue 2016 & Cum. Supp.
2020).
19
See Neb. Rev. Stat. §§ 38-801 to 38-811 (Reissue 2016 & Cum. Supp.
2020).
20
See, generally, 78 Am. Jur. Trials 1, § 5 (2001) (observing considerable
variation among 50 states in statutory scope of allowable chiropractic
practice; some statutes narrowly restrict chiropractic practice and others
authorize using range of diagnostic and treatment methods in addition to
spinal manipulation).
21
See § 38-103.
22
See, generally, § 38-121(1).
23
See §§ 38-101(7) and 38-121(1)(i).
- 192 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179credentialed health professionals may not practice beyond the
authorized scope of their profession. 24
In Nebraska, the statutory scope of chiropractic practice
has changed over the years, 25 and currently, it is defined in
§ 38-805 of the Chiropractic Practice Act, which provides:
(1) Practice of chiropractic means one or a combination
of the following, without the use of drugs or surgery:
(a) The diagnosis and analysis of the living human
body for the purpose of detecting ailments, disorders, and
disease by the use of diagnostic X-ray, physical and clini-
cal examination, and routine procedures including urine
analysis; or
(b) The science and art of treating human ailments,
disorders, and disease by locating and removing any
interference with the transmission and expression of nerve
energy in the human body by chiropractic adjustment,
chiropractic physiotherapy, and the use of exercise, nutri-
tion, dietary guidance, and colonic irrigation.
Additionally, the Chiropractic Practice Act expressly excludes
“[l]icensed physicians and surgeons” and “licensed osteopathic
physicians” who are exclusively engaged in the practice of
their respective professions. 26 Conversely, the Medicine and
Surgery Practice Act 27 excludes chiropractors from the class of
persons who engage in the unauthorized practice of medicine,
so long as the chiropractor is “licensed and practicing under
the Chiropractic Practice Act.” 28
24
See, e.g., §§ 38-178(6)(b) and 38-179. See, also, 172 Neb. Admin. Code
ch. 29, § 007.02(C) (2020).
25
Compare § 38-805, with Neb. Rev. Stat. § 71-177 (1943) (defining “practice
of chiropractic” as “[p]ersons publicly professing to be chiropractors” and
“[p]ersons who treat human ailments by the adjustment by hand of any
articulation of the spine”).
26
§ 38-806.
27
See Neb. Rev. Stat. §§ 38-2001 to 38-2062 (Reissue 2016 & Cum. Supp.
2020).
28
§ 38-2025(13).
- 193 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179We understand Yagodinski to argue that McClaren’s diag-
nosis of a traumatic brain injury falls within the scope of
chiropractic practice because § 38-805 contains no language
expressly restricting the practice of chiropractic to only certain
areas of the body, and it does not expressly restrict the types
of ailments, disorders, and diseases that chiropractors can diag-
nose. Yagodinski also appears to argue that § 38-805 does not
purport to restrict the methods or equipment a chiropractor can
use to reach a diagnosis. In other words, Yagodinski generally
argues that chiropractors are authorized to diagnose human
disease without limitation. The trial court rejected such a broad
interpretation of § 38-805, and we do too.
[7-9] Whether a particular diagnosis, or diagnostic method,
is within the authorized scope of chiropractic practice is
primarily a question of statutory interpretation. 29 In constru-
ing a statute, a court must determine and give effect to the
purpose and intent of the Legislature as ascertained from the
entire language of the statute considered in its plain, ordinary,
and popular sense. 30 To give effect to all parts of a statute,
an appellate court will attempt to reconcile different provi-
sions so they are consistent, harmonious, and sensible, and
will avoid rejecting as superfluous or meaningless any word,
clause, or sentence. 31
Yagodinski is correct that § 38-805 does not expressly limit
the areas of the body or the types of ailments that a licensed
chiropractor can diagnose and treat. Nor does it expressly pro-
hibit the use of any particular method or equipment when mak-
ing a diagnosis. But the plain language of § 38-805 imposes
29
See Annot., 16 A.L.R.4th 58, § 2[b] (1982) (whether particular practice or
procedure is within authorized scope of chiropractic is primarily question
of statutory interpretation and normal rules of construction apply).
30
Anderson v. A & R Ag Spraying & Trucking, 306 Neb. 484, 946 N.W.2d
435 (2020).
31
See E.M. v. Nebraska Dept. of Health & Human Servs., 306 Neb. 1, 944
N.W.2d 252 (2020).
- 194 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179such limitations indirectly by restricting the diagnostic and
treatment methods that licensed chiropractors can use.
Subsection (1)(a) of § 38-805 restricts the diagnostic meth-
ods a chiropractor can use to detect ailments, disorders, and
disease, and subsection (1)(b) restricts the treatment methods
a chiropractor can use. By restricting both the diagnostic and
treatment methods available to licensed chiropractors, the
Legislature has necessarily restricted the universe of ailments,
disorders, and diseases such professionals can diagnose and
treat within the scope of chiropractic practice. 32 Stated dif-
ferently, when defining the scope of chiropractic practice
under § 38-805(1)(a), the Legislature has authorized a licensed
chiro­practor to diagnose only those human ailments, disorders,
or diseases that can be detected “by the use of diagnostic
X-ray, physical and clinical examination, and routine proce-
dures including urine analysis.” And under § 38-805(1)(b),
the Legislature has authorized a licensed chiropractor to treat
only those human ailments, disorders, and diseases which
can be addressed by “locating and removing any interfer-
ence with the transmission and expression of nerve energy
in the human body by chiropractic adjustment, chiroprac-
tic physiotherapy, and the use of exercise, nutrition, dietary
guidance, and colonic irrigation.” By way of comparison, the
Legislature has placed no statutory restrictions on the diagnos-
tic methods or the treatment methods physicians can use, and
it has defined the practice of medicine and surgery broadly to
32
Compare limited diagnostic and treatment methods under § 38-805(1)(a),
with § 38-2024(2), (3), and (5) (broadly defining practice of medicine
and surgery to include persons “who prescribe and furnish medicine for
some illness, disease, ailment, injury, pain, deformity, or any physical
or mental condition, or treat the same by surgery”; persons “qualified in
the diagnosis or treatment of diseases, ailments, pain, deformity, or any
physical or mental condition, or injuries of human beings”; and persons
who “maintain an office for the examination or treatment of persons
afflicted with ailments, diseases, injuries, pain, deformity, or any physical
or mental condition of human beings”).
- 195 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179include “the diagnosis or treatment of diseases, ailments, pain,
deformity, or any physical or mental condition, or injuries of
human beings.” 33
[10] We must reject Yagodinski’s invitation to interpret
§ 38-805 so broadly that it permits licensed chiropractors to
diagnose all human conditions without limitation. Such a con-
struction would ignore the statutory restrictions placed on the
diagnostic methods a chiropractor can use and would expand
the authorized diagnostic methods to be commensurate with
licensed physicians and surgeons. The Legislature has cir-
cumscribed the diagnostic and treatment methods available to
licensed chiropractors, and courts should not, by judicial inter-
pretation, expand the practice of chiropractic beyond the scope
established by the Legislature. 34
The plain language of § 38-805(1)(a) authorizes chiro-
practors to use only certain diagnostic methods: “diagnostic
X-ray, physical and clinical examination, and routine proce-
dures including urine analysis.” The trial court determined the
methods used by McClaren to diagnose Yagodinski’s traumatic
brain injury fell outside the statutory scope of chiropractic
practice. As we explain, on this record, we see no error in
that finding.
[11] We have been directed to no statute purporting to
more specifically define the permissible diagnostic methods
described in § 38-805(1)(a). Generally speaking, when a stat-
ute does not define a term or phrase, courts will give the
phrase its ordinary meaning, 35 and we do so here. But we
33
§ 38-2024(3).
34
See State, ex rel. Iowa Dept. of Health v. Van Wyk, 320 N.W.2d 599(Iowa 1982). See, also, Atty. Gen., on Behalf of People v. Beno, 422
Mich. 293, 312, 373 N.W.2d 544, 552 (1985) (observing “public health
and safety is best protected by more strictly construing the jurisdiction of
the more specialized and limited health profession in favor of the more
comprehensively trained and licensed profession”).
35
See Hall v. United States, 566 U.S. 506, 132 S. Ct. 1882, 182 L. Ed. 2d
840 (2012).
- 196 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179also find instructive the administrative regulations adopted by
the Department of Health and Human Services which more
directly address both the diagnostic methods chiropractors can
use and the purpose of such methodologies. 36
[12] Consistent with the diagnostic methods described
generally in § 38-805, the regulations of the Department of
Health and Human Services provide that a chiropractor’s diag-
nostic methods “may include, but are not limited to, urine
and blood analysis and diagnostic imaging.” 37 To the extent
§ 38-805(1)(a) also authorizes chiropractors to use “physical
and clinical examination” as a diagnostic method, the regula-
tions explain that the purpose of such clinical evaluations is
to “assess[] the patient’s current health status or identify if the
patient is a proper subject for chiropractic care.” 38 As such,
the diagnostic method of “physical and clinical examination”
described in § 38-805(1)(a) is necessarily confined to assessing
patients for the purpose of determining appropriate chiropractic
care. 39 Were the scope of chiropractic practice not so confined,
licensed chiropractors would arguably be subject to malprac-
tice liability anytime they failed to diagnose a patient’s medi-
cal condition or injury, regardless of whether such condition or
injury can be treated with chiropractic care. 40
36
See 172 Neb. Admin. Code ch. 29, § 008 (2020).
37
Id.
38
Id. (emphasis supplied).
39
See, id.; § 38-805(1)(a).
40
See, e.g., Goldstein v. Janusz Chiropractic Clinics, S.C., 218 Wis. 2d
683, 582 N.W.2d 78 (Wis. App. 1998) (explaining chiropractor not sub­
ject to malpractice for failure to diagnose abnormal lung mass because
chiropractors are confined to their limited scope of chiropractic practice).
See, also, Braford v. O’Connor Chiropractic Clinic, 243 Mich. App.
524, 624 N.W.2d 245 (2000) (observing scope of chiropractic care, and
chiropractor’s standard of care, are two sides of same coin; the former
identifies what chiropractors are permitted to do, and the latter establishes
what chiropractors must do).
- 197 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179The conclusion that the statutorily authorized diagnostic
methods should not be used to expand the scope of chiropractic
is further supported by the statutory directive in § 38-805(2):
The use of X-rays beyond the axial skeleton as described
in [§ 38-805(1)(a)] shall be solely for diagnostic pur-
poses and shall not expand the practice of chiropractic to
include the treatment of human ailments, disorders, and
disease not permitted when the use of X-rays was limited
to the axial skeleton.
Here, the record contains no evidence that when diagnos-
ing Yagodinski with a traumatic brain injury, McClaren used
any of the diagnostic methods described in and authorized by
§ 38-805(1)(a). Instead, Yagodinski describes that the diagnos-
tic methods used by McClaren included “certain optical exam­
inations,” “the use of a saccadometer,” “a neuropsychological
battery, a dynamic visual test[,] and other digital tests utilized
in concussion baseline and diagnosis.” 41 She contends that all
the diagnostic testing methods used by McClaren are gener-
ally accepted and used in the medical community to diagnose
brain injuries.
We express no opinion on whether these testing methods
are generally accepted and used in the medical community
to diagnose brain injuries because that issue is not before
us. The question we must answer is whether licensed chi-
ropractors are authorized to use such methods in diagnos-
ing patients. We see nothing in the record supporting such
a conclusion. Obviously, optical tests, saccadometers, and
neuropsychological batteries are not among the diagnostic
methods authorized in § 38-805. And we see nothing in the
record that would support the conclusion that the optical tests
and neuropsychological batteries used by McClaren to reach
his diagnosis were administered for the purpose of assess-
ing whether Yagodinski was a proper subject for chiropractic
41
Brief for appellant at 32.
- 198 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179care. 42 Absent such evidence, we see no clear error in the trial
court’s finding that the diagnostic methods used by McClaren
to reach his diagnosis of traumatic brain injury fell outside
the scope of chiropractic practice. 43
[13] In sum, when an expert is a licensed health professional
offering testimony about a patient, it is entirely appropriate for
a court to consider, as a factor affecting qualification, the statu-
tory scope of practice established by the Legislature. 44 The dis-
trict court here applied the correct legal standard to determine
whether McClaren was qualified to offer an expert opinion on
traumatic brain injury, and it did not abuse its discretion in
excluding the proffered diagnosis on the basis that McClaren’s
diagnostic methods fell outside the scope of chiropractic prac-
tice in Nebraska.
2. Additional Education and Training
Cannot Expand Scope of
Chiropractic Practice
In arguing that the district court should have found McClaren
was qualified to testify that Yagodinski suffered a traumatic
brain injury, Yagodinski relies heavily on the facts that, in
addition to the standard chiropractic education and licen-
sure, McClaren has over 600 hours of education and training
focused on traumatic brain injury and holds himself out as
42
See 172 Neb. Admin. Code ch. 29 § 008.
43
See State, ex rel. Iowa Dept. of Health, supra note 34, 320 N.W.2d at 601(affirming that methods used by chiropractor fell “outside the ambit of
those chiropractic functions contemplated or allowed by statute”).
44
See, Floyd, supra note 3 (finding no abuse of discretion in excluding
expert testimony from witness who had pre-med education, graduated from
chiropractic college, and had hundreds of hours of additional education in
“applied kinesiology,” when evidence did not show witness was actually
licensed to practice chiropractic); Rodgers, supra note 13, 228 Neb. at
197, 421 N.W.2d at 789 (framing expert qualification question as whether
proffered opinion of licensed chiropractor was “within the scope of the
field of chiropractic”).
- 199 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179a board-certified “chiropractic neurologist.” Yagodinski relies
on the general principle that expert witnesses “‘will be con-
sidered qualified if, and only if, they possess special skill or
knowledge respecting the subject matter involved so superior
to that of persons in general as to make the expert’s formation
of a judgment a fact of probative value.’” 45
Yagodinski concedes that McClaren is not licensed to prac-
tice medicine, but she argues that his “chiropractic education,
training and practice in orthopaedics and neurology utilize the
same medical texts and literature to diagnose and analyze the
human body as utilized in medical schools.” 46 Additionally,
she argues that McClaren’s “graduate and post-graduate edu-
cational curriculum consisted of medical texts and literature
authored by medical doctors” 47 and that in reaching his diag-
nosis of mild traumatic brain injury, he applied diagnostic
methods used by medical doctors and relied on peer-reviewed
“medical literature from renowned institutions such as Harvard
Medical School.” 48 Yagodinski thus concludes that “McClaren
possesses special skills and knowledge so superior to persons
in general [that he is] unequivocally qualified to testify as an
expert in chiropractic neurology.” 49
We have been directed to nothing in the applicable statutes
or regulations that defines the practice of “chiropractic neu-
rology” or that recognizes such a subspecialty in Nebraska.
But regardless, there is a more fundamental problem with
Yagodinski’s argument: It rests on the faulty assumption that
the scope of chiropractic practice in Nebraska is something
a chiropractor can expand through additional education and
45
Carlson, supra note 7, 267 Neb. at 409, 675 N.W.2d at 102, quoting Ashby
v. First Data Resources, 242 Neb. 529, 497 N.W.2d 330 (1993).
46
Brief for appellant at 34.
47
Id. at 16.
48
Id. at 32.
49
Id. at 39.
- 200 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179training. But no amount of additional education will qualify a
licensed chiropractor to offer expert testimony about a patient
that is outside the scope of chiropractic practice in Nebraska,
absent additional licensure and credentialing.
[14,15] This opinion should not be understood as expressing
skepticism or criticism of McClaren’s education, training, or
specialized knowledge as it relates to neurology or traumatic
brain injury. But we must soundly reject the suggestion that
a licensed chiropractor can expand the scope of chiro­practic
practice in Nebraska merely through additional education,
training, and professional affiliation. The scope of chiropractic
practice has been established by the Legislature, and only that
body has the authority to expand it. 50
[16] If licensed chiropractors, or other credentialed health
professionals, think it is appropriate to request an expansion of
the scope of practice under Nebraska law, there is a statutory
process for doing so. 51 But where, as here, a licensed, cre-
dentialed health professional seeks to offer an expert opinion
regarding a patient’s diagnosis, it is entirely appropriate to
limit such expert testimony to matters within the scope of the
expert’s professional licensure and credentialing.
The trial court did not err in finding that McClaren’s addi-
tional education did not qualify him to testify as an expert on a
matter outside the scope of chiropractic practice. Nor was there
any abuse of discretion in excluding McClaren’s proffered
opinion on the basis it was outside the scope of chiropractic
practice in Nebraska.
Lastly, because we find McClaren’s testimony regarding
the diagnosis of traumatic brain injury was properly excluded
50
See Harvey, supra note 17, 96 Neb. at 789, 148 N.W. at 926 (recognizing
Legislature has power to amend laws regulating practice of medicine if
those laws are considered “harsh, unjust or impolitic” to professionals
practicing chiropractic).
51
See, e.g., Neb. Rev. Stat. §§ 71-6221(3) and 71-6223 (Reissue 2018).
- 201 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
YAGODINSKI v. SUTTON
Cite as 309 Neb. 179on grounds it fell outside the scope of chiropractic practice
in Nebraska, we do not address the district court’s analysis
under the Daubert/Schafersman framework. 52
V. CONCLUSION
For the foregoing reasons, the order of the district court
is affirmed.
Affirmed.
52
See Doty v. West Gate Bank, 292 Neb. 787, 874 N.W.2d 839 (2016)
(appellate court not obligated to engage in analysis that is not necessary to
adjudicate case and controversy before it).