Gonzales v. Neb. Pediatric Practice, Inc.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/29/2019 09:08 AM CST
- 764 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764Rosa Gonzales and Javier Rojas, individually and
as parents and next friends of Joaquin Rojas,
a minor, appellants, v. Nebraska Pediatric
Practice, Inc., et al., appellees.
___ N.W.2d ___
Filed January 29, 2019. No. A-17-350.
1. Expert Witnesses: Appeal and Error. Abuse of discretion is the proper
standard of review of a district court’s evidentiary ruling on the admis-
sion of expert testimony under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
2. Judges: Words and Phrases. A judicial abuse of discretion exists when
a judge, within the effective limits of authorized judicial power, elects
to act or refrain from acting, but the selected option results in a deci-
sion which is untenable and unfairly deprives a litigant of a substantial
right or a just result in matters submitted for disposition through a judi-
cial system.
3. Trial: Evidence: Appeal and Error. To constitute reversible error in a
civil case, the admission or exclusion of evidence must unfairly preju-
dice a substantial right of a litigant complaining about evidence admitted
or excluded.
4. Evidence: Expert Witnesses. Expert medical testimony must be based
on a reasonable degree of medical certainty or a reasonable probability.
5. Trial: Expert Witnesses. An objection to the opinion of an expert based
upon the lack of certainty in the opinion is an objection based upon
relevance.
6. Evidence: Words and Phrases. Relevant evidence means evidence
having any tendency to make the existence of any fact that is of conse-
quence to the determination of the action more or less probable than it
would be without the evidence.
7. Expert Witnesses: Physicians and Surgeons: Words and Phrases.
“Magic words” indicating that an expert’s opinion is based on a reason-
able degree of medical certainty or probability are not necessary.
- 765 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 7648. Expert Witnesses: Words and Phrases. An expert opinion is to be
judged in view of the entirety of the expert’s opinion and is not vali-
dated or invalidated solely on the basis of the presence or lack of the
magic words “reasonable medical certainty.”
9. Expert Witnesses: Physicians and Surgeons. The requirement that
expert medical testimony be based on a reasonable degree of medical
certainty or reasonable probability requires that causation testimony
move beyond a mere loss of chance—or a diminished likelihood of
achieving a more favorable medical outcome.
10. ____: ____. Loss of chance, in Nebraska, is insufficient to establish
causation.
11. Trial: Expert Witnesses. Whether a witness is qualified as an expert is
a preliminary question for the trial court.
12. Courts: Expert Witnesses. Under the evaluation of expert opinion
testimony, the trial court acts as a gatekeeper to ensure the evidentiary
relevance and reliability of an expert’s opinion.
13. 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.
14. Trial: Expert Witnesses. Before admitting expert opinion testimony,
the trial court must (1) determine whether the expert’s knowledge, skill,
experience, training, and education qualify the witness as an expert;
(2) if an expert’s opinion involves scientific or specialized knowledge,
determine whether the reasoning or methodology underlying the tes-
timony is valid; (3) determine whether that reasoning or methodology
can be properly applied to the facts in issue; and (4) determine whether
the expert evidence and the opinions related thereto are more probative
than prejudicial.
15. Trial: Expert Witnesses: Pretrial Procedure. A challenge under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262
Neb. 215, 631 N.W.2d 862 (2001), should take the form of a concise
pretrial motion and should identify which of these factors—the expert’s
qualification, the validity/reliability of the expert’s reasoning or method-
ology, the application of the reasoning or methodology to the facts, and/
or the probative or prejudicial nature of the testimony—is believed to
be lacking.
16. Trial: Expert Witnesses: Physicians and Surgeons. Testimony of
qualified medical doctors cannot be excluded simply because they are
not specialists in a particular school of medical practice.
17. Rules of Evidence: Expert Witnesses. Whether a witness is an expert
under Neb. Rev. Stat. § 27-702 (Reissue 2016) depends on the factual
- 766 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764basis or reality behind a witness’ title or underlying a witness’ claim
to expertise.
18. Trial: Expert Witnesses. Experts or skilled witnesses will be consid-
ered 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 proba-
tive value.
19. Appeal and Error. An appellate court may, at its discretion, discuss
issues unnecessary to the disposition of an appeal where those issues are
likely to recur during further proceedings.
20. Trial: Expert Witnesses. A trial court, when faced with an objection
under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland
Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), must adequately demon-
strate by specific findings on the record that it has performed its duty
as gatekeeper.
21. Trial: Expert Witnesses: Records: Appeal and Error. After an objec-
tion under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland
Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), has been made, the losing
party is entitled to know that the trial court has engaged in the heavy
cognitive burden of determining whether the challenged testimony was
relevant and reliable, as well as a record that allows for meaningful
appellate review.
22. Trial: Expert Witnesses: Appeal and Error. Without specific findings
or discussion on the record, it is impossible to determine whether the
trial court carefully and meticulously reviewed the proffered scientific
evidence or simply made an off-the-cuff decision to admit expert testi-
mony. The trial court must explain its choices so that the appellate court
has an adequate basis to determine whether the analytical path taken by
the trial court was within the range of reasonable methods for distin-
guishing reliable expert testimony from false expertise.
Appeal from the District Court for Douglas County: James
T. Gleason, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Greg Garland, of Greg Garland Law, Tara DeCamp, of
DeCamp Law, P.C., L.L.O., and Kathy Pate Knickrehm for
appellants.
Patrick G. Vipond, Sarah M. Dempsey, and William R.
Settles, of Lamson, Dugan & Murray, L.L.P., for appellees.
- 767 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764R iedmann, Bishop, and Welch, Judges.
Welch, Judge.
I. INTRODUCTION
Rosa Gonzales and Javier Rojas (Appellants), individually
and as parents and next friends of Joaquin Rojas, appeal the
district court’s order denying the motion to admit expert tes-
timony filed by Appellants and granting the motion to strike
expert testimony filed by Nebraska Pediatric Practice, Inc.;
Corey S. Joekel, M.D.; and Children’s Hospital and Medical
Center (Children’s) (collectively Appellees). Appellants also
appeal the district court’s order granting Appellees’ motion for
summary judgment. For the reasons set forth herein, we affirm
in part, and in part reverse and remand for further proceedings
consistent with this opinion.
II. STATEMENT OF FACTS
1. A ppellants’ Complaint
In August 2014, Appellants sued Appellees for malpractice
or professional negligence under Neb. Rev. Stat. § 44-2822(Reissue 2010). Specifically, Appellants allege Rosa brought
her son Joaquin to the emergency department at Children’s on
August 5, 2012, with symptoms consistent with mononucleo-
sis, which ia also known as the Epstein-Barr virus (EBV). The
examining physician diagnosed Joaquin with mononucleosis
and discharged him. On August 7, Rosa brought Joaquin back
to the emergency department at Children’s because Joaquin’s
symptoms were not improving and some of his symptoms
seemed to be getting worse. Appellants allege that at that
time, some of Joaquin’s symptoms were consistent with mono-
nucleosis and EBV meningoencephalitis. Encephalitis is an
inflammation of the brain, and meningitis is an inflammation
of the protective membranes covering the brain. Dr. Joekel, the
treating emergency department physician, diagnosed Joaquin
with mononucleosis and discharged him.
Three and a half hours after being discharged, Joaquin had
a seizure requiring fire department emergency personnel to
- 768 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764transport him from his home to the University of Nebraska
Medical Center (UNMC) emergency department, where he was
subsequently admitted. During the seizure, medical personnel
administered antiepileptic drugs and performed a tracheos-
tomy due to a lack of oxygen during the seizure. At UNMC,
Joaquin was diagnosed with EBV meningo­encephalitis, which
is a combination of encephalitis and meningitis, and on August
10, 2012, Joaquin underwent a decompressive craniectomy
to remove sections of his skull to relieve pressure on his
brain. About a month later, Joaquin underwent a cranioplasty
to replace the skull sections. Joaquin was discharged from
UNMC to a rehabilitation hospital, where he spent about
a month receiving physical and speech therapy. Appellants
allege that since returning home, Joaquin has displayed effects
of brain injury caused by the August 7 seizure, including
learning deficits and placement in special education classes.
Appellants’ complaint alleges Dr. Joekel was professionally
negligent in failing to diagnose Joaquin’s EBV meningo­
encephalitis and failing to admit Joaquin to Children’s for
further supportive treatment and evaluation. On the dates at
issue, Dr. Joekel was a pediatric emergency department physi-
cian employed with Nebraska Pediatric Practice, which had
a contract with Children’s to provide emergency department
services at its facility.
2. Pretrial Motions
In February 2017, Appellants filed a motion under Neb. Rev.
Stat. § 27-104 (Reissue 2016) to qualify Dr. Todd Lawrence
as an expert witness on all elements of proof required for
this medical malpractice claim, including standard of care,
breach, causation, and damages. Appellees filed a motion to
strike Dr. Lawrence as an expert witness, arguing that his
proposed causation testimony amounted to speculative loss-
of-chance testimony and was inadmissible under the require-
ments 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- 769 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764(2001) (Daubert/Schafersman). Appellees also filed a motion
for summary judgment on the issue of causation, asserting
Appellants could not prove causation and had not presented
any evidence that Joaquin’s outcome would have been dif-
ferent if he had been admitted to Children’s and treated on
August 7, 2012, rather than being discharged.
During a hearing on the motions, the court first heard argu-
ment and received exhibits on Appellants’ motion to qualify
their expert and Appellees’ motion to strike Appellants’ expert.
Appellants offered the following exhibits which were received
without objection: Dr. Lawrence’s curriculum vitae, Appellants’
designation of Dr. Lawrence as an expert witness, Dr.
Lawrence’s deposition, and Dr. Joekel’s deposition. Appellees
offered Dr. Ivan Pavkovic’s deposition, Dr. Pavkovic’s affida-
vit, Dr. Archana Chatterjee’s affidavit, and various published
medical literature explaining EBV, encephalitis, meningitis,
and seizures. Appellants objected to Appellees’ exhibits, with
the exception of the deposition of Dr. Pavkovic. Specifically,
Appellants’ counsel stated:
[Counsel]: . . . We object to [the affidavits of Drs.
Pavkovic and Chatterjee] on 402, 403, 702, Schafersman
1 and 2, Kuhmo Tire, and . . . the reason for [the objec-
tions to the affidavits of Drs. Pavkovic and Chatterjee] —
THE COURT: . . . [I]f you have an objection, make
it. . . . I don’t need argument.
[Counsel]: Those are the numbers. And on [the pub-
lished medical literature], we object on 402, 403 and
803.17. As there’s been no showing that those are reliable
documents by any medical witness since they’re going to
be used in a dispositive motion . . . .
....
[Counsel]: . . . Would the court entertain a comment
on [the objections to the affidavits of Drs. Pavkovic and
Chatterjee]?
THE COURT: No. For the purposes of this hearing, the
exhibits will be received.
- 770 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764After discussion on the motions concerning Dr. Lawrence’s
testimony, the court then moved to the motion for summary
judgment and asked for argument and additional exhibits
other than what had already been received. Neither party
offered any additional exhibits. Appellees noted that the motion
for summary judgment turned on the question of whether
Dr. Lawrence’s testimony on causation would be permitted.
Appellees argued that Dr. Pavkovic indicated, in his opinion,
that nothing could have been done to prevent the outcome in
this case and that without Dr. Lawrence’s testimony, Appellants
have no causation opinion. Appellants conceded Appellees’
argument and stated: “If you determine that we don’t have cau-
sation, then [Appellees’ motion for summary judgment] needs
to be granted.”
3. Exhibits R eceived During Hearing
(a) “Designation” of Dr. Lawrence
Appellants’ “[d]esignation” of Dr. Lawrence provided that
Dr. Lawrence specialized in family and emergency medi-
cine. The designation indicated that, in preparation for this
case, Dr. Lawrence reviewed Joaquin’s medical records from
a health clinic, the fire department transport, Children’s,
UNMC, and an eye consultant, as well as the complaint,
answers, and depositions in this case. The designation listed
various methodologies which Dr. Lawrence used in his analy-
sis, including the “Case Study Method,” the “SOAP Process,”
the “Differential Diagnosis Method,” and the “Differential
Etiology Method.”
The designation offered Dr. Lawrence’s opinion that Dr.
Joekel was required by the applicable standard of care to prop-
erly monitor, treat, and diagnose Joaquin during his emergency
department visit to Children’s on August 7, 2012, including
putting EBV encephalitis and meningitis on the differential
diagnosis; ordering laboratory work, including a complete
blood count test, a white blood count test, a C-reactive protein
test, and a urine test; ordering a lumbar puncture; diagnosing
- 771 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764and treating EBV encephalitis or meningitis; ordering intra-
venous (IV) fluids, IV antivirals, and aggressive fever medi-
cations; and admitting Joaquin to the hospital to provide
supportive care, treatment, and monitoring, including, but
not limited to, providing care, treatment, and monitoring of
Joaquin’s EBV meningoencephalitis. The designation provided
Dr. Lawrence’s opinion that Dr. Joekel breached this standard
of care in failing to perform these functions and that this fail-
ure directly caused Joaquin’s injuries.
(b) Dr. Lawrence’s Deposition
In Dr. Lawrence’s deposition, he testified he has been
employed with a medical center in Waterloo, Iowa, since 2003,
where he has served as a medical director and staff physician
for the emergency department. Dr. Lawrence is board certified
in family practice, but he is not board certified in pediatrics,
pediatric neurology, or pediatric infectious disease. Although
he serves as an administrator, the majority of his time was
spent working as an emergency department physician. In this
role, Dr. Lawrence testified that 30 to 40 percent of his patients
are pediatric patients; he treats an average of two patients per
month with mononucleosis; and of those individuals, he has
performed probably four to five total spinal taps and hospi-
talized an average of two or three of the diagnosed patients
each year. Although he has not diagnosed a patient with EBV
encephalitis or meningitis, he has treated patients with viral
meningitis. As to seizures and their link to brain injury, Dr.
Lawrence testified that he has “seen plenty of patients in
[his] career with brain injuries related to seizures not related
to infections.”
Dr. Lawrence testified he was not sure when Joaquin’s
mononucleosis turned into EBV meningoencephalitis, but that
he believes Joaquin had EBV meningoencephalitis when he
was treated by Dr. Joekel on August 7, 2012. In general,
Dr. Lawrence provided that the treatment for EBV meningo­
encephalitis “is supportive care typically, so IV fluids, aggres-
sive fever medications, [and] aggressive hydration.” He
- 772 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764testified that hospitalization is appropriate if a patient with
mononucleosis is “quite ill, not able to keep their fever under
control, [and] not able to eat or drink appropriately.” He testi-
fied that “along with the constellation of other symptoms, the
decision to admit a patient, you take all of what’s going on
and how the child is responding and make a determination if
they’re sick enough where they need to be admitted or not. It’s
a clinical judgment.”
Dr. Lawrence testified to areas in which he believes Dr.
Joekel deviated from the standard of care; specifically, he
testified that Dr. Joekel should have had encephalitis and
meningitis higher on his differential diagnosis and performed
further tests to rule them out, including a complete blood count
test, a white blood count test, a C-reactive protein test, and a
lumbar puncture. Dr. Lawrence testified the results of these
tests would have indicated a need to hospitalize Joaquin. He
also testified that Dr. Joekel should have started Joaquin on
IV fluids to ensure hydration. He said that once Joaquin was
hospitalized, Joaquin should have received IV fluids, IV anti-
biotics, and IV acyclovir (which is an antiviral medication),
as well as received more monitoring and management of his
fever through more aggressive fever medications. These treat-
ments, Dr. Lawrence acknowledged, would not have addressed
the EBV infection directly, but instead would have addressed
some of the EBV symptoms to assist Joaquin’s body in fight-
ing the infection itself. Dr. Lawrence indicated that hydration,
both orally and through IV fluids, assists the patient’s body in
addressing the symptoms of EBV and, perhaps, in fighting the
virus itself. As such, Dr. Lawrence testified that doing so may
have reduced Joaquin’s fever and the risk of seizure. As to
acyclovir, Dr. Lawrence provided: “[W]hile it is not a specific
treatment for [suspected mononucleosis that has turned into
encephalitis,]” there are “some anecdotal studies that it does
help and helps reduce the shedding of the virus.” However,
Dr. Lawrence acknowledged acyclovir is typically “more for
the herpes viral type” and “no studied evidence . . . proves”
- 773 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764that acyclovir can treat EBV or prevent its further progression.
Dr. Lawrence testified that if he had a child present with viral
meningitis, he would “start them an IV of acyclovir with the
hopes [that it would] decrease the viral shedding.” As to the
fever monitoring and medicating, Dr. Lawrence opined that the
hospital would have monitored Joaquin’s fever and would have
better managed it by “giving him Tylenol and/or ibuprofen.”
Dr. Lawrence opined that Joaquin’s lack of treatment
and hospitalization contributed to his injuries, claiming that
Joaquin’s brain injury was caused by both the EBV meningo-
encephalitis and the seizure. Dr. Lawrence provided that the
seizure contributed to Joaquin’s brain injury in two possible
ways, or in some combination thereof: First, the length and
severity of the seizure could have, itself, resulted in brain
injury. Second, the lack of oxygen caused by the seizure could
have resulted in brain injury. Although he could not specifi-
cally attribute what percentage of Joaquin’s brain injury was
caused by the EBV meningoencephalitis and what percentage
was caused by the failure to control Joaquin’s seizure, he stated
that the seizure, through these pathways and in combination
with the EBV meningoencephalitis, resulted in brain swelling
which, in turn, resulted in brain injury. When asked whether
the seizure or the EBV meningoencephalitis was more respon-
sible for the brain injury, Dr. Lawrence stated:
I’d have to defer that off to your pediatric neurologist that
you referenced. But I think . . . clearly, it was both.
And to give a number on there, I don’t know how you
could assign a number. But I’ve seen plenty of patients
in my career with brain injuries related to seizures not
related to infections.
Dr. Lawrence opined that if Joaquin was adequately treated,
his fever and hydration would have improved, which would
have helped his body fight the infection which caused the
brain injury. Dr. Lawrence specifically testified that “it may
have decreased his chance of actually developing the encepha-
litis that triggered the seizure” or reduced or prevented the
- 774 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764seizure. Specifically, he addressed how taking steps to hospi-
talize, treat, and monitor Joaquin would have diminished the
seizure, stating:
My opinion is that had they identified the meningitis,
encephalitis sooner, he would have been admitted to the
hospital. He may or may not have had the seizure. Had he
had the seizure, it would have been not as severe because
he was in the hospital. And they could have used abortive
seizure, epileptic medicines sooner.
And then his outcome would have been not as severe
requiring all the constellation of problems that he’s had
following that, between the craniotomy, the surgeries, the
G-tube, the tracheostomy, the long hospitalization, the
admission to the rehab unit, et cetera.
Dr. Lawrence further explained the seizure would have been
better managed and possibly prevented if Joaquin had been in
the hospital, because his hospitalization would have allowed
for the management of his fever and hydration, use of antiepi-
leptic drugs, and the ability to address his deficiency in oxygen
as it arose. Dr. Lawrence stated that Joaquin “would have had
a decreased length of hypoxia, decreased length of the seizure,
and would have had a better outcome, which, with the reason-
able degree of certainty, [Joaquin would then] not have had the
craniotomy and all the procedures that followed that.”
Responding to a question of whether a pediatric neurologist
or a pediatric infectious disease expert would have much more
knowledge concerning the effect of hydration and fever medi-
cation on preventing seizures, Dr. Lawrence agreed. However,
Dr. Lawrence explained:
I never said [the seizure could have been totally pre-
vented]. I said his chance of seizure would have been
less. I can’t give you the number, . . . and, yes, a pediatric
neurologist or pediatric [infectious disease] person would
be able to better tell you that.
But my opinion is that [Joaquin’s] chance of having a
seizure would have been less. The seizure caused hypoxia
- 775 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764. . . which could have caused some of the brain dam-
age also.
(c) Dr. Joekel’s Deposition
In Dr. Joekel’s deposition, he testified concerning his treat-
ment of Joaquin on August 7, 2012. Specifically, he opined:
It was a tragic outcome, a very rare complication of a
fairly common viral infection that we see in children. At
the time I saw Joaquin, he didn’t have clinical signs or
symptoms of meningitis or encephalitis, and despite my
meeting the standard of care and providing expert care,
sometimes there [are] bad outcomes and I feel bad about
that for them.
Dr. Joekel additionally addressed Joaquin’s seizure, possible
treatment, and its effect on brain swelling. On treatment of sei-
zures generally, Dr. Joekel provided:
If [a patient that had similar symptoms to Joaquin] was
currently having a seizure, we would evaluate to deter-
mine if it was a seizure. . . . If we determine that it is
indeed a seizure and we want to stop it, then we have
many medications that we would or could give. I mean, it
depends on the individual patient.
On having a seizure at home or at the hospital, Dr. Joekel
responded to questioning:
Q. Would you prefer a patient if they’re going to have
a seizure to have it in the hospital or at home?
....
A. That’s a question I can’t answer. It depends on
the seizure. It depends on the patient. It depends on
the circumstances. There are some very well-qualified
families that take care of seizures in their kids at home
all the time.
Q. . . . All right. But for the most part, wouldn’t it be
better to have the patient in the hands of trained profes-
sionals who have access to medicines and machines who
can help treat them better?
- 776 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764....
A. Yes.
With respect to whether the seizure could have caused
the need for the decompressive craniotomy or resulting brain
injury, Dr. Joekel stated: “Seizures typically don’t cause brain
swelling or injuries like that,” but he admitted that he would
typically defer to a neurologist or a neurosurgeon on such
a question.
(d) Dr. Pavkovic’s Deposition
In Dr. Pavkovic’s deposition, he testified that he is employed
by “Children’s Specialty Physicians, which is the academic
practice at Children’s,” and is board certified in sleep medicine,
epilepsy, and neurology, with special qualifications in pediatric
neurology. Dr. Pavkovic was Joaquin’s pediatric neurologist,
beginning August 7, 2012, after Joaquin experienced his sei-
zure. At that point, Dr. Pavkovic first noted that the seizure
was likely a result of an infectious or inflammatory cause and
later confirmed that it was a result of Joaquin’s EBV meningo-
encephalitis. Dr. Pavkovic diagnosed Joaquin with “mild static
encephalopathy”—a mild, unchanging “brain disorder”—and
continued treatment of Joaquin with his last visit occurring
in September 2015. Dr. Pavkovic testified regarding various
conditions he observed in Joaquin and whether they were a
result of brain injury suffered as a result of Joaquin’s EBV
meningoencephalitis. He testified that although brain injury
occurs due to EBV meningoencephalitis, it is unclear how the
injury occurs. Specifically, Dr. Pavkovic stated, “There may be
a direct effect of the virus to actually kill brain cells or it may
be an immune response to the virus, but something about that
virus’s presence is what leads to the brain injury.”
Regarding Joaquin’s brain swelling, the subsequent need for
a craniotomy, and the possibility of a brain injury, Dr. Pavkovic
testified: “[T]here’s no preventative treatment that I know of
[to treat patients with EBV encephalitis in a way to prevent the
brain from swelling to the point where the patient would need
a craniotomy].” He further explained:
- 777 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764The brain swelling is a manifestation of the brain injury. I
guess the analogy would be you . . . bump your knee and
then the joint wells up kind of a thing. So it’s a similar
phenomenon. The injury — the cell death is there and
then there’s swelling as a consequence of that.
Q. . . . So does the swelling occur after the brain
is injured?
A. Yes.
Dr. Pavkovic also testified concerning Joaquin’s seizure
and stated that he has not “treat[ed] patients who have EBV
encephalitis but who have not had a seizure,” because “[t]here
is no treatment for EBV encephalitis.” Dr. Pavkovic testified
that he did not know how long Joaquin had EBV meningo-
encephalitis prior to the seizure and that it was “probably
unknowable.” He further testified that although Joaquin is at an
increased risk for future seizures due to his condition, he does
not receive continuing treatment for seizures because there is
no such treatment and he will receive treatment for any future
seizures as they occur.
(e) Dr. Pavkovic’s Affidavit
In Dr. Pavkovic’s affidavit, he provided further opinion on
the issue of causation of Joaquin’s injuries, stating:
6. Based upon my treatment of Joaquin . . . , my review
of his medical records, and my education, training, and
experience, it is my opinion, to a reasonable degree of
medical certainty, that even if Dr. . . . Joekel had hospital-
ized Joaquin . . . on August 7, 2012, there is nothing that
could have been done to prevent Joaquin’s mononucleosis
infection from spreading to his brain and developing into
[EBV] encephalitis. Treating Joaquin’s fever and provid-
ing Joaquin with fluids and antibiotics would not have
stopped the progression of the infection. There is also
no evidence that providing this treatment would have
prevented Joaquin from having a seizure or reduced his
chance of having a seizure.
- 778 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 7647. Although the medication acyclovir can be given
to patients suffering from EBV encephalitis, there is no
medical proof that it works to stop the progression of
this illness. There is no treatment for EBV encephali-
tis. There is also no scientific evidence supporting the
notion that giving Joaquin acyclovir would have pre-
vented his seizure.
8. Joaquin suffered mild brain damage as a result of the
EBV encephalitis. There is no evidence that the seizure
Joaquin suffered contributed to any brain injury. Even
if Joaquin had been hospitalized at the time he had the
seizure, it would not have changed the outcome. There is
nothing that Dr. Joekel or any other physician could have
done to improve Joaquin’s outcome. Joaquin’s brain dam-
age is due to the EBV encephalitis and was not caused by
any delay in treatment.
(f) Dr. Chatterjee’s Affidavit
In Dr. Chatterjee’s affidavit, she testified she is a pediatric
infectious disease physician who is board certified in general
pediatrics and pediatric infectious disease and serves as a
professor and “the Chair of the Department of Pediatrics at
the University of South Dakota Sanford School of Medicine.”
Dr. Chatterjee provided her opinion regarding causation of
Joaquin’s medical conditions, stating:
6. Based on my review of Joaquin’s medical records,
the above mentioned depositions, and my education,
training, and experience, it is my opinion, to a reason-
able degree of medical certainty, that even if Dr. Joekel
had admitted Joaquin to the hospital on August 7, 2012,
Joaquin’s outcome would not have been any different.
7. There was no clinical evidence that Joaquin had
EBV encephalitis when he presented to the emergency
department in the morning on August 7, 2012. His symp-
toms were consistent with mononucleosis. . . . There is no
treatment for mononucleosis. It is not possible to know
when Joaquin’s mononucleosis infection developed into
- 779 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764EBV encephalitis. Dr. Joekel acted within the standard of
care by discharging Joaquin from the emergency depart-
ment and sending him home. Based on the child’s pre-
senting symptoms, Dr. Joekel could not have anticipated
the very rare complication that Joaquin’s mononucleosis
would develop into [EBV encephalitis] and spread to
his brain.
8. Dr. Lawrence suggests that Dr. Joekel should have
admitted Joaquin to the hospital. He also opines that
blood tests should have been done and a lumbar puncture
should have been done on Joaquin. . . . Even if the tests
had been done, the results would not have been immedi-
ately available, and even if the lumbar puncture results
had come back showing EBV encephalitis, there is no
specific treatment for EBV encephalitis. There is noth-
ing that could have been done for Joaquin in the hospital
that would have prevented the virus from spreading to
his brain.
9. Dr. Lawrence further suggests that Joaquin should
have been given the medication acyclovir as treatment
for EBV encephalitis. However, there is no scientific
evidence that acyclovir works to treat EBV encephalitis
or to stop the spread of the virus. There is no scientific
evidence that administering IV fluids or antibiotics stops
the spread of this virus. Further, there is no scientific evi-
dence supporting Dr. Lawrence’s opinion that providing
this type of supportive care would have prevented Joaquin
from having a seizure or reduced Joaquin’s chance of
having a seizure.
10. The viral infection EBV encephalitis caused
Joaquin’s brain injury. There is no evidence that a delay
in treatment caused or contributed to Joaquin’s brain
injury. Whether or not Joaquin was in the hospital at the
time he had a seizure would not have changed the ulti-
mate outcome and would not have prevented the brain
damage he suffered.
- 780 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764(g) Medical Literature
In the medical literature excerpts received by the court,
Appellees provided various sections of books, articles, and
reviews on the subjects of EBV, encephalitis, meningitis,
and seizures.
First, in an article from the New England Journal of
Medicine, the authors identify that “[i]nfectious mononucleosis
is a clinical syndrome that is most commonly associated with
primary [EBV] infection.” Katherine Luzuriaga, M.D., & John
L. Sullivan, M.D., Infectious Mononucleosis, 362 New Eng.
J. Med. 1993, 1993 (2010). For the management of infectious
mononucleosis, the authors provide:
On the basis of clinical experience, supportive care is
recommended for patients with infectious mononucleosis.
Acetaminophen or nonsteroidal antiinflammatory agents
are recommended to manage fever, throat discomfort, and
malaise. Adequate fluid intake and nutrition should also
be encouraged. Although getting adequate rest is prudent,
bed rest is unnecessary.
Id. at 1996-97. On the issue of utilizing antiviral treatment of
infectious mononucleosis, the authors stated that “[l]arger ran-
domized, blinded, placebo-controlled trials are necessary,” id.
at 1997, concluding “[t]reatment is largely supportive; antiviral
therapy is not recommended, and corticosteroids are not indi-
cated for uncomplicated cases,” id. at 1998.
Another article explores treatment for EBV and describes
that “[a]lthough there are no definitive effective treatments
in many cases of encephalitis, identification of a specific
agent may be important for prognosis, potential prophylaxis,
counseling of patients and family members, and public health
interventions.” Allen R. Tunkel et al., The Management of
Encephalitis: Clinical Practice Guidelines by the Infectious
Diseases Society of America, 47 Clinical Infectious Diseases
303, 303 (2008). Specifically, as to acyclovir’s possible use for
EBV treatment, the authors write:
Acyclovir inhibits replication of [EBV] in vitro, but a
meta-analysis of 5 clinical trials did not show benefit in
- 781 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764the treatment of infectious mononucleosis . . . . Although
acyclovir has been used in some cases of [a central nerv­
ous system] disease . . . , it probably provides little or no
benefit and is not recommended.
Id. at 323.
One textbook discusses the use of acyclovir to treat EBV
and specifically provides that “[a]cyclovir should be used to
treat herpes simplex and [varicella zoster virus] encephali-
tis and perhaps encephalitis caused by [EBV].” 1 Ralph D.
Feigin, M.D., et al., Feigin & Cherry’s Textbook of Pediatric
Infectious Diseases 511 (6th ed. 2009) (quoting chapter 42
entitled “Encephalitis and Meningoencephalitis”). The text-
book, however, also provides that “[t]he effectiveness of vari-
ous recommended regimens in most instances has not been
evaluated objectively.” Id.
Similarly, in a review, the authors discuss possible treat-
ment for infectious mononucleosis, but find “[t]here is no
approved treatment.” Henry H. Balfour, Jr., et al., Infectious
Mononucleosis, 4 Clinical & Translational Immunology 1, 5
(2015). Although the authors mention “valacyclovir” as a pos-
sible antiviral drug to help treat EBV, they conclude: “As our
study contained few subjects and was not placebo controlled,
these results must be confirmed in a larger, placebo-controlled
trial.” Id.
The authors of another review looked at trials from the use
of antiviral agents on infectious mononucleosis and concluded:
The effectiveness of antiviral agents (acyclovir,
valomaciclovir and valacyclovir) in acute [infectious
­
mononucleosis] is uncertain. The quality of the evidence
is very low. . . . Alongside the lack of evidence of effec-
tiveness, decision makers need to consider the potential
adverse events and possible associated costs, and antiviral
resistance. Further research in this area is warranted.
M. De Paor et al., Antiviral Agents for Infectious Mononucleosis
(Glandular Fever), Cochrane Database of Systematic Reviews,
Issue 12, Art. No.: CD011487 (2016).
- 782 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764In a report, the authors discuss possible treatments for infec-
tious mononucleosis, stating:
Patients suspected to have infectious mononucleosis
should not be given ampicillin or amoxicillin, which
cause nonallergic morbilliform rashes in a high propor-
tion of patients with active EBV infection. Although
therapy with short-course corticosteroids may have a
beneficial effect on acute symptoms, because of poten-
tial adverse effects, their use should be considered only
for patients with marked tonsillar inflammation with
impending airway obstruction, massive splenomegaly,
myocarditis, hemolytic anemia, or HLH. . . . Although
acyclovir has in vitro antiviral activity against EBV,
therapy is of no proven value in infectious mono­
nucleosis . . . .
American Academy of Pediatrics, Red Book: Report of the
Committee on Infectious Diseases 321 (29th ed. 2012).
Finally, another review discusses the use of antiepileptic
drugs for the treatment of seizures due to viral encephalitis, in
which review the authors conclude:
It remains unclear whether antiepileptic drugs reduce
the risk of seizures during the acute phase of the illness
or decrease morbidity and mortality when used as pri-
mary prophylaxis. It is also unclear whether antiepileptic
drugs reduce the risk of further seizures when used as
secondary prophylaxis. Use of antiepileptic drugs car-
ries an inherent risk of adverse events. In the absence
of any evidence from randomized or quasi-randomized
controlled trials, no recommendations can be made
regarding the use of antiepileptic drugs as primary or
secondary prophylaxis for seizures in patients with viral
encephalitis.
S. Pandey et al., Antiepileptic Drugs for the Primary and
Secondary Prevention of Seizures in Viral Encephalitis,
Cochrane Database of Systematic Reviews, Issue 5, Art. No.:
CD010247 (2016).
- 783 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 7644. Orders on Motions
In March 2017, the court entered orders on these motions.
On Appellants’ motion to qualify their expert and Appellees’
motion to strike the testimony of Dr. Lawrence, the court
entered an order precluding testimony by Dr. Lawrence on the
issue of causation, stating:
Based on the evidence before the Court, the Court
determines that Dr. Todd Lawrence M.D. is a qualified
expert in the field of emergency room medicine. The
Court finds that based on the deposition of Dr. Lawrence,
he is not qualified by virtue of training, expertise or expe-
rience to render any opinions on the progress or causation
of this child’s condition. Such opinions would require
expertise and qualification in the specialty of neurology
and specifically child neurology. As a result of this failure
of qualifications, Dr. Todd Lawrence’s opinions cannot
be allowed. The Court also notes that Dr. Lawrence’s
opinion[s] are also inadmissible because they are all
opinions of the “loss of chance” of the child to obtain a
better result.
Because of this preclusion and because Appellants offered
no other proposed evidence on the issue of causation, the court
granted summary judgment in favor of Appellees in a sepa-
rate order. The court also stated that summary judgment was
appropriate because the evidence submitted by Appellees in
support of their motion for summary judgment precluded the
existence of any issue of material fact and showed Appellees
were entitled to a judgment as a matter of law. Appellants filed
an appeal of these rulings.
III. ASSIGNMENTS OF ERROR
Appellants assign, restated, that the district court erred by
(1) excluding the opinions of Dr. Lawrence on the subject of
causation of Joaquin’s injuries, (2) denying Appellants’ objec-
tion to the affidavits of Drs. Pavkovic and Chatterjee in support
of Appellees’ motion for summary judgment, and (3) granting
Appellees’ motion for summary judgment.
- 784 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764IV. STANDARD OF REVIEW
[1-3] Abuse of discretion is the proper standard of review of
a district court’s evidentiary ruling on the admission of expert
testimony under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
State v. Hill, 288 Neb. 767, 851 N.W.2d 670 (2014). A judicial
abuse of discretion exists when a judge, within the effective
limits of authorized judicial power, elects to act or refrain from
acting, but the selected option results in a decision which is
untenable and unfairly deprives a litigant of a substantial right
or a just result in matters submitted for disposition through a
judicial system. Id. To constitute reversible error in a civil case,
the admission or exclusion of evidence must unfairly prejudice
a substantial right of a litigant complaining about evidence
admitted or excluded. Richardson v. Children’s Hosp., 280
Neb. 396, 787 N.W.2d 235 (2010).
V. ANALYSIS
1. Dr. Lawrence’s Causation Testimony
Appellants first assign the district court erred in denying
their motion to qualify Dr. Lawrence’s expert testimony and
granting Appellees’ motion to strike Dr. Lawrence’s expert
testimony on causation. Specifically, Appellants argue Dr.
Lawrence’s testimony on causation of Joaquin’s injuries did
not amount to loss-of-chance testimony and that Dr. Lawrence
was qualified to testify regarding causation.
(a) Loss-of-Chance Testimony
Appellants claim the district court erred in finding Dr.
Lawrence’s opinions inadmissible as opinions of the loss of
chance of Joaquin to obtain a better result. Appellees argue
the court did not err because Dr. Lawrence’s testimony was
speculative, lacked certainty, and amounted to loss-of-chance
testimony.
[4-8] Expert medical testimony must be based on a reason-
able degree of medical certainty or a reasonable probability.
Edmonds v. IBP, inc., 239 Neb. 899, 479 N.W.2d 754 (1992).
- 785 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764An objection to the opinion of an expert based upon the lack of
certainty in the opinion is an objection based upon relevance.
Richardson, supra. Relevant evidence means evidence having
any tendency to make the existence of any fact that is of con-
sequence to the determination of the action more or less prob-
able than it would be without the evidence. Id. “Magic words”
indicating that an expert’s opinion is based on a reasonable
degree of medical certainty or probability are not necessary. Id.
An expert opinion is to be judged in view of the entirety of the
expert’s opinion and is not validated or invalidated solely on
the basis of the presence or lack of the magic words “reason-
able medical certainty.” Id.
[9,10] The requirement that expert medical testimony be
based on a reasonable degree of medical certainty or rea-
sonable probability requires that causation testimony move
beyond a mere loss of chance—or a “diminished likelihood
of achieving a more favorable medical outcome.” See Cohan
v. Medical Imaging Consultants, 297 Neb. 111, 122, 900
N.W.2d 732, 740 (2017), modified on denial of rehearing 297
Neb. 568, 902 N.W.2d 98. As the Nebraska Supreme Court
provided in Richardson, 280 Neb. at 405, 787 N.W.2d at 243,
“‘[L]oss of chance,’ . . . in Nebraska, is insufficient to estab-
lish causation.”
The Nebraska Supreme Court discussed loss-of-chance tes-
timony in Rankin v. Stetson, 275 Neb. 775, 749 N.W.2d 460(2008). In Rankin, the plaintiff offered expert testimony that
stated “it was more likely than not” that the plaintiff would
have recovered from her spinal cord injury had surgery been
performed within the first 72 hours. 275 Neb. at 779, 749
N.W.2d at 464. The Nebraska Supreme Court stated that an
opinion that a plaintiff would have had a “‘better prognosis’”
and a “‘chance of avoiding permanent neurological injury’”
did not establish the certainty of proof that was required. Id.
at 787, 749 N.W.2d at 469. Nevertheless, because the doc-
tor’s opinion also stated that early surgical decompression
of the spinal cord more likely than not would have led to
- 786 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764an improved outcome, the evidence was sufficient to estab-
lish causation. Id. See, also, Richardson v. Children’s Hosp.,
280 Neb. 396, 406, 787 N.W.2d 235, 243 (2010) (finding
that expert’s opinion that patient “could have recovered” had
patient, who died of necrotizing hemorrhagic pancreatitis,
earlier received IV fluids was given with sufficient degree
of medical certainty and was sufficient to establish causation
for purposes of patient’s mother’s medical malpractice case
against physician and hospital).
Here, we note that Dr. Lawrence’s testimony governing
causation differed in relation to Dr. Joekel’s failure to admit
Joaquin to the hospital for supportive care to treat EBV menin-
goencephalitis and in relation to Dr. Joekel’s failure to admit
Joaquin to the hospital and monitor and implement treat-
ment to control Joaquin’s seizure. We will address those mat-
ters separately.
Regarding supportive care to treat EBV meningo­
encephalitis, Dr. Lawrence opined that Dr. Joekel should have
admitted Joaquin, ordered IV fluids, antivirals, and more
aggressive fever medications. That said, in testimony govern-
ing the issue of supportive treatment, Dr. Lawrence conceded
that the offered treatment would not directly treat Joaquin’s
underlying illness, the EBV meningoencephalitis. Instead, Dr.
Lawrence contends hydration and IV fluids, antiviral medi-
cations, monitoring, and more aggressive fever medications
would have put Joaquin’s body in a better state to fight the
infection itself. Although Dr. Lawrence acknowledged he was
not certain it would have changed the result, he opined that
“[the supportive treatment] may have decreased [Joaquin’s]
chance of actually developing the encephalitis that triggered
the seizure” and “would have decreased the chance of having
the seizure.” This acknowledged lack of certainty together with
the language of “decreased the chance” provided the district
court a sufficient basis to find this amounted to loss-of-chance
testimony which, in Nebraska, is insufficient to establish cau-
sation. Accordingly, we affirm that portion of the court’s order
- 787 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764striking Dr. Lawrence’s opinions governing the failure to treat
Joaquin as it relates to the progression of the EBV or the
decreased chance of having a seizure.
Regarding Dr. Joekel’s failure to admit Joaquin and provide
supportive care to control Joaquin’s seizure once it occurred,
Dr. Lawrence’s testimony is different. Dr. Lawrence testified
that monitoring Joaquin in the hospital and supplying him
with medical treatment would have mitigated the effects of
his seizure. He testified that the seizure could have been better
managed if Joaquin had been in the hospital to better control
his fever and hydration, to employ the use of antiepileptic
drugs, and to more rapidly address his lack of oxygen issues
as they arose. Specifically, he provided: “[Joaquin] would
have had a decreased length of hypoxia, decreased length
of the seizure, and would have had a better outcome, which,
with the reasonable degree of certainty, [Joaquin would then]
not have had the craniotomy and all the procedures that fol-
lowed that.”
Unlike his testimony concerning the utility of supportive
treatments to address the progression of Joaquin’s underly-
ing viral infection and seizure avoidance, the above-quoted
testimony provides greater certainty and moves beyond a
mere loss of chance—or a “diminished likelihood of achiev-
ing a more favored medical outcome.” See Cohan v. Medical
Imaging Consultants, 297 Neb. 111, 122, 900 N.W.2d 732,
740 (2017), modified on denial of rehearing 297 Neb. 568,
902 N.W.2d 98. Dr. Lawrence did not testify that hospitaliz-
ing and treating Joaquin for his seizure would have increased
his chance of a better outcome. He explicitly testified that
proper medical treatment of the seizure at the hospital would
have, to a reasonable degree of certainty, resulted in a better
outcome. Such certainty is in line with the accepted language
outlined in Richardson v. Children’s Hosp., 280 Neb. 396, 787
N.W.2d 235 (2010), and Rankin v. Stetson, 275 Neb. 775, 749
N.W.2d 460 (2008), and does not amount to loss-of-chance
testimony. Therefore, the district court erred in determining
- 788 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764Dr. Lawrence’s specific line of causation testimony linking
Joaquin’s injuries to Dr. Joekel’s failure to admit Joaquin and
monitor and implement treatment to control Joaquin’s seizure
amounted to loss-of-chance opinion testimony and lacked rel-
evancy. This leads to Appellants’ second assigned error that the
district court erred in finding Dr. Lawrence was not qualified
to render his causation opinion.
(b) Professional Qualifications
of Expert Witnesses
Appellants claim the district court erred in determining Dr.
Lawrence was not qualified to testify on the subject of cau-
sation of Joaquin’s injuries. In its order denying Appellants’
motion to qualify its expert and granting Appellees’ motion to
strike Dr. Lawrence’s expert testimony, the district court stated
that “he is not qualified by virtue of training, expertise or expe-
rience to render any opinions on the progress or causation of
[Joaquin’s] condition.”
[11-13] Under Neb. Rev. Stat. § 27-702 (Reissue 2016), a
witness can testify concerning scientific, technical, or other
specialized knowledge only if the witness is qualified as an
expert. Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d
89 (2004). Whether a witness is qualified as an expert is a
preliminary question for the trial court. Id. In Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), the
Nebraska Supreme Court adopted the test set forth in Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993), for the evaluation of expert
opinion testimony. Under this evaluation, the trial court acts as
a gatekeeper to ensure the evidentiary relevance and reliabil-
ity of an expert’s opinion. See, State v. Daly, 278 Neb. 903,
775 N.W.2d 47 (2009); Schafersman, supra. 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. State v. Casillas, 279 Neb. 820, 782
N.W.2d 882 (2010).
- 789 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764[14,15] Under § 27-702 and Daubert/Schafersman juris-
prudence, before admitting expert opinion testimony, the trial
court must (1) determine whether the expert’s knowledge,
skill, experience, training, and education qualify the witness
as an expert; (2) if an expert’s opinion involves scientific or
specialized knowledge, determine whether the reasoning or
methodology underlying the testimony is valid; (3) determine
whether that reasoning or methodology can be properly applied
to the facts in issue; and (4) determine whether the expert evi-
dence and the opinions related thereto are more probative than
prejudicial. See State v. Tolliver, 268 Neb. 920, 689 N.W.2d
567 (2004). See, also, State v. Braesch, 292 Neb. 930, 874
N.W.2d 874 (2016). A Daubert/Schafersman challenge should
take the form of a concise pretrial motion and should identify
which of these factors—the expert’s qualifications, the validity/­
reliability of the expert’s reasoning or methodology, the appli-
cation of the reasoning or methodology to the facts, and/or the
probative or prejudicial nature of the testimony—is believed to
be lacking. See Casillas, supra.Here, the district court excluded Dr. Lawrence’s causa-
tion testimony solely on the basis of his qualification to give
such opinion. It is unclear from the record whether Appellees’
challenge to Dr. Lawrence was limited to his qualifications to
testify or whether Appellees were extending their challenge to
his theory or methodology and/or his application of the facts
to his theory or methodology. See brief for appellees at 28
(arguing that Dr. Lawrence’s opinions “were not sufficiently
reliable”). We note the Nebraska Supreme Court’s admoni-
tion that a Daubert/Shafersman challenge should specifically
identify 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. Because the district court’s order
was limited to striking Dr. Lawrence on the sole issue of his
qualifications to testify, we now examine that specific factor.
[16] We first note that testimony of qualified medical doctors
cannot be excluded simply because they are not specialists in
- 790 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764a particular school of medical practice. Carlson v. Okerstrom,
267 Neb. 397, 675 N.W.2d 89 (2004). Thus, Dr. Lawrence’s
testimony is not unqualified merely because he is not board
certified in pediatrics, neurology, or infectious disease.
[17,18] Whether a witness is an expert under § 27-702
depends on the factual basis or reality behind a witness’ title
or underlying a witness’ claim to expertise. State v. Reynolds,
235 Neb. 662, 457 N.W.2d 405 (1990). Experts or skilled wit-
nesses will be considered qualified if, and only if, they pos-
sess 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.
Carlson, supra.Here, Dr. Lawrence’s deposition and curriculum vitae pro-
vide that he is employed as the medical director and a staff
physician of the emergency department at an Iowa medical
center where he has worked since 2003. Although he is also
an administrator, he spends the majority of his time working
as an emergency department physician. He is board certified
in family practice, but his practice is entirely with the emer-
gency department and 30 to 40 percent of his patients are
pediatric patients. Although he has never diagnosed a patient
with EBV encephalitis or meningitis, he has treated patients
with viral meningitis and has an average of two patients per
month who present with mononucleosis. Of those patients
with mononucleosis, he has hospitalized patients showing
significant illness at a rate of two or three per year. As to sei-
zures and their relation to brain injury, Dr. Lawrence testified
that he has “seen plenty of patients in [his] career with brain
injuries related to seizures.” Although Dr. Lawrence is not
board certified in pediatric neurology, he has experience in the
treatment of pediatric patients, viral infections, and neurologic
conditions related to seizures.
Additionally, Dr. Lawrence’s answers during his deposi-
tion to questioning about EBV, mononucleosis, encephalitis,
and meningitis correlate with the information on treatment
- 791 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764contained in the medical literature and expert depositions and
affidavits offered by Appellees on these subjects. The medical
literature and Appellees’ expert witnesses explained that there
is no treatment for EBV specifically and that any treatment
for EBV and EBV encephalitis is supportive in nature. Dr.
Lawrence acknowledged this fact and indicated his offered
treatment for Joaquin was directed at this supportive care.
According to Dr. Lawrence, the suggested IV fluids, fever
monitoring and responsive medication, and antiviral medica-
tions would have been implemented in order to assist Joaquin’s
body in fighting the virus and addressing the symptoms of
EBV meningoencephalitis. Although Appellees, through their
offered exhibits, argued such treatment would likely have not
changed the end result, the offered exhibits do not contest that
such treatment is typical for this medical condition.
Notwithstanding the above, Dr. Lawrence’s testimony
diverts from the testimony of Drs. Pavkovic and Chatterjee in
his opinion about linking Joaquin’s brain injury to his uncon-
trolled seizure. In short, Dr. Lawrence claims Dr. Joekel failed
to hospitalize, treat, and control Joaquin’s seizure which then
contributed to Joaquin’s brain injury while Drs. Pavkovic and
Chatterjee relate Joaquin’s brain injury solely as a manifesta-
tion of the untreatable EBV meningoencephalitis.
In support of his opinion, Dr. Lawrence testified that Dr.
Joekel deviated from the standard of care by failing to hos-
pitalize Joaquin. He stated that Joaquin, once hospitalized,
would have had his hydration monitored, been started on IV
fluids, been provided antivirals, and had his fever more effec-
tively managed through monitoring and responsive medication.
By hospitalizing and implementing monitoring and supportive
treatment, his body would have been better prepared to lessen
his seizure and he would have had the seizure in the hospital
where its staff would be able to immediately diagnose the sei-
zure, limit the extent and duration of his seizure through the
use of antiepileptic medication, and immediately address any
lack of oxygen issues as they arose.
- 792 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764Having failed to provide that supportive care, Dr. Lawrence
testified with reasonable medical certainty that Joaquin’s
uncontrolled seizure contributed, along with his EBV menin-
goencephalitis, to his brain injury in two ways: First, Joaquin’s
seizure was long in duration and long seizures can produce
brain injuries on their own. Second, Joaquin’s seizure resulted
in his having to get a tracheostomy due to lack of oxygen.
Dr. Lawrence testified that lack of oxygen may lead to lack
of oxygen to the brain and result in brain injury. In sum, Dr.
Lawrence testified with a reasonable degree of medical cer-
tainty that had Joaquin been in the hospital and received treat-
ment and monitoring as required by Dr. Lawrence’s offered
standard of care, the medical attendants would have been able
to mitigate these issues deriving from the seizure and limited
the duration and extent of the seizure. Dr. Lawrence also testi-
fied with a reasonable degree of medical certainty that the need
for Joaquin’s tracheostomy would have been diminished if
Joaquin had the seizure at the hospital and the staff was moni-
toring his oxygen levels and responding appropriately during
the seizure. As such, the monitoring and treatment for the lack
of oxygen would have prevented the tracheostomy and result-
ing scarring.
Conversely, the medical literature and expert affidavits
offered by Appellees did not specifically address the ability of
hospital staff to mitigate the effects of the seizure. Instead, the
literature addressed only whether antiepileptic drugs reduce the
initial or secondary risk of having seizures. Appellees’ experts’
affidavits stated only that there is no scientific evidence that
supportive treatment would have prevented the seizure and
that the treatment for the seizures would not have prevented
Joaquin’s brain injury. To the extent that the literature and
affidavits conflict with Dr. Lawrence’s testimony on the treat-
ment of seizures and their effect on Joaquin’s brain injury, this
presents a question of fact. See Hawkins v. City of Omaha, 261
Neb. 943, 627 N.W.2d 118 (2001) (explaining that question of
whether one expert and his conclusions is more qualified than
- 793 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764another expert and his conclusions goes only to weight of testi-
mony and that determining weight that should be given expert
testimony is uniquely province of fact finder).
Dr. Lawrence’s testimony was that Dr. Joekel’s failure to
hospitalize and control the seizure contributed to Joaquin’s
brain injury. Although Dr. Lawrence testified he would defer
to a pediatric neurologist on the precise amount each factor
contributed to Joaquin’s brain injury, he is not required to be
able to testify on the percentage of the brain injury caused by
the lack of treatment compared to that caused by Joaquin’s
EBV meningoencephalitis. See Thone v. Regional West Med.
Ctr., 275 Neb. 238, 250, 745 N.W.2d 898, 908 (2008) (in medi-
cal malpractice context, “the element of proximate causation
requires proof that the physician’s deviation from the standard
of care caused or contributed to the injury or damage to the
plaintiff”) (emphasis supplied). See, also, Microfinancial, Inc.
v. Premier Holidays Intern., 385 F.3d 72, 80 (1st Cir. 2004)
(describing that federal counterpart to § 27-702 “is not so
wooden as to demand an intimate level of familiarity with
every component of a transaction or device as a prerequisite to
offering expert testimony” when considering qualifications of
any expert as applied to specific issue in case).
Dr. Lawrence is an experienced emergency room doctor who
has experience treating pediatric patients, mononucleosis viral
encephalitis and meningitis, and seizures. His deposition testi-
mony largely coincides with the medical information supplied
by Appellees’ experts’ affidavits and depositions, as well as
medical literature. When offering his medical opinions on the
causation of Joaquin’s brain injury and scarring, Dr. Lawrence
testified with a reasonable degree of medical certainty, utilizing
his training and experience as an emergency department doc-
tor, that proper care by Dr. Joekel would have decreased, if not
eliminated, Joaquin’s injuries.
During oral argument, Appellants’ counsel argued that
as [the judge] said in his order that it would have required
a pediatric neurologist to opine on this [and] if that’s
- 794 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764where we’re going, I just need to know we’re moving into
the world of specialty medicine and we’re kind of aban-
doning the old concept that a medical doctor can testify in
an area of specialization even if he is a generalist.
Dr. Lawrence clearly possesses special knowledge respect-
ing 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. See State v. Herrera,
289 Neb. 575, 856 N.W.2d 310 (2014) (explaining that court
should not require absolute certainty, but should admit expert
testimony if there are good grounds for expert’s conclu-
sion, even if there could possibly be better grounds for some
alternative conclusion). If Appellees have more specialized
experts and evidence to attack Dr. Lawrence’s conclusions,
Appellees 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. See, generally, Pineda v. Ford Motor Co., 520
F.3d 237 (3d Cir. 2008) (it is abuse of discretion to exclude
testimony simply because trial court does not deem proposed
expert to be best qualified or because proposed expert does
not have specialization that court considers most appropri-
ate); U.S. v. Sandoval-Mendoza, 472 F.3d 645, 655 (9th Cir.
2006) (because medical expert opinion testimony is based
on specialized, as distinguished from scientific, knowledge,
“‘Daubert factors are not intended to be exhaustive or unduly
restrictive’”); Robinson v. GEICO General Ins. Co., 447
F.3d 1096 (8th Cir. 2006) (most courts have held that physi-
cian with general knowledge may testify regarding medical
issues that specialist might treat in clinical setting); R. Collin
Mangrum, Mangrum on Nebraska Evidence 690 (2018) (more
accurate or complete statement would be that physicians are
competent in great number of cases by education, training,
and experience to testify about both matters observed as phy-
sicians and opinions based upon reasonably relied upon medi-
cal experts).
- 795 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764We hold that, on this record, the district court abused its
discretion in determining that Dr. Lawrence was unquali-
fied under § 27-702 to testify on causation as to the injuries
Joaquin suffered due to Dr. Joekel’s failure to hospitalize,
treat, and control Joaquin’s seizure, the sole causation opinion
offered by Dr. Lawrence which was stated with the degree
of certainty or probability necessary to make it relevant. In
finding that Dr. Lawrence is qualified by his education, train-
ing, and background to render this opinion, we express no
opinion as to whether his 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 testimony is more probative or prejudicial. To the
extent Appellees were challenging those factors, those compo-
nents of the Daubert/Schafersman analysis were not addressed
by the district court in its order. See Zimmerman v. Powell,
268 Neb. 422, 430, 684 N.W.2d 1, 9 (2004) (holding “the trial
court ‘must explain its choices’ so that the appellate court has
an adequate basis to determine whether the analytical path
taken by the trial court was within the range of reasonable
methods for distinguishing reliable expert testimony from false
expertise”). We recognize the court likely did not address those
factors either because it did not believe they were being chal-
lenged or because its ruling made it unnecessary to address the
remaining factors.
Either way, because the trial court did not address those
factors, we are unable to review the court’s analysis governing
these factors. This results in prejudice to Appellants whose
case has been dismissed due to the striking of Dr. Lawrence’s
testimony. Some courts have held that when a trial court fails
to make required findings, the appellate court should conduct
the Daubert/Schafersman analysis on the appellate record.
See, Kinser v. Gehl Co., 184 F.3d 1259 (10th Cir. 1999), abro-
gated on other grounds, Weisgram v. Marley Co., 528 U.S.
440, 120 S. Ct. 1011, 145 L. Ed. 2d 958 (2000); Tanner v.
Westbrook, 174 F.3d 542 (5th Cir. 1999), superseded on other
- 796 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764grounds, Fed. R. Evid. 103(a). But our Supreme Court has
held that this improperly shifts the gatekeeping duty from the
trial courts to the appellate courts. Zimmerman, supra.The dissent agrees that Dr. Lawrence was qualified to tes-
tify as an expert, but determined that the district court did not
exclude Dr. Lawrence based upon his credentials. The dis-
sent states the district court’s ruling goes further and reaches
an analysis of Dr. Lawrence’s “reasoning or methodology to
reach his opinions.” The dissent then analyzes the record as it
relates to Dr. Lawrence’s methodology and application of the
facts to the methodology. This court’s differing interpretations
of the district court’s order here underscore the importance
of the Nebraska Supreme Court’s admonition to counsel in
State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010), that
a Daubert/Schafersman challenge should take the form of a
concise pretrial motion and should identify which of these
factors—the expert’s qualifications, the validity/­ reliability
of the expert’s reasoning or methodology, the application of
the reasoning or methodology to the facts, and/or the pro-
bative or prejudicial nature of the testimony—is believed
to be lacking. It further underscores the importance of the
Supreme Court’s admonition to the trial court in Zimmerman
v. Powell, 268 Neb. 422, 430, 684 N.W.2d 1, 9 (2004), that
the trial court
“must explain its choices” so that the appellate court
has an adequate basis to determine whether the ana-
lytical path taken by the trial court was within the range
of reasonable methods for distinguishing reliable expert
testimony from false expertise. Margaret A. Berger, The
Supreme Court’s Trilogy on the Admissibility of Expert
Testimony, in Reference Manual on Scientific Evidence
29 (Federal Judicial Center 2d ed. 2000).
Assuming that Appellees were challenging the validity/­
reliability of the expert’s reasoning or methodology here, or
Dr. Lawrence’s application of the facts to that reasoning/­
methodology, the majority finds no analytical path in the trial
- 797 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764court’s order sufficient to review those elements. The trial
court’s order held that Dr. Lawrence “is not qualified by virtue
of training, expertise or experience to render any opinions on
the progress or causation of this child’s condition.” We inter-
pret the court’s order as finding that Dr. Lawrence was not
qualified to issue any opinion here on causation, not that his
opinion was unreliable and should be excluded. Nor do we find
any explanation of the trial court’s choices here as they relate
to Dr. Lawrence’s methodology or application of fact to meth-
odology so as to review the analytical path taken by the trial
court as it relates to those elements. Accordingly, we remand
this matter for further proceedings.
2. A ffidavits of Drs. Pavkovic
and Chatterjee
[19] Appellants next assign the district court erred in over-
ruling their objection to the affidavits of Drs. Pavkovic and
Chatterjee. At the hearing, Appellants orally objected to
the affidavits, stating: “We object . . . on 402, 403, 702,
Schafersman 1 and 2, [and] Kuhmo Tire.” Denying Appellants’
request for further argument and overruling the objection, the
court stated: “For the purposes of this hearing, the exhibits will
be received.” Although this issue is no longer essential to the
disposition of this appeal, an appellate court may, at its discre-
tion, discuss issues unnecessary to the disposition of an appeal
where those issues are likely to recur during further proceed-
ings. Nebraska Account. & Disclosure Comm. v. Skinner, 288
Neb. 804, 853 N.W.2d 1 (2014).
[20-22] As we previously noted, a trial court, when faced
with a Daubert/Schafersman objection, “‘must adequately
demonstrate by specific findings on the record that it has
performed its duty as gatekeeper.’” Zimmerman v. Powell,
268 Neb. 422, 430, 684 N.W.2d 1, 9 (2004). After such a
Daubert/Schafersman objection has been made, “the losing
party is entitled to know that the trial court has engaged in
the ‘“‘heavy cognitive burden’”’ of determining whether
the challenged testimony was relevant and reliable, as well
- 798 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764as a record that allows for meaningful appellate review.”
Zimmerman, 268 Neb. at 430, 684 N.W.2d at 9, quoting
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d
862 (2001). “‘Without specific findings or discussion on the
record, it is impossible . . . to determine whether the [trial]
court “‘carefully and meticulously’ review[ed] the proffered
scientific evidence” or simply made an off-the-cuff decision
to admit expert testimony.’” Zimmerman v. Powell, 268 Neb.
422, 430, 684 N.W.2d 1, 9 (2004). This means that the trial
court must explain its choices so that the appellate court has
an adequate basis to determine whether the analytical path
taken by the trial court was within the range of reasonable
methods for distinguishing reliable expert testimony from
false expertise. Id.Here, the court did not allow Appellants to provide their
reasons for the objections, but Appellants did make it clear
they were challenging the affidavits on Daubert/Schafersman
grounds. The court summarily overruled Appellants’ objections
and failed to provide its reasoning. As such, the court erred in
failing to supply such reasoning and abdicated its gatekeeping
function under Daubert/Schafersman jurisprudence.
3. A ppellees’ Motion for
Summary Judgment
Lastly, Appellants assign the district court erred in granting
summary judgment in favor of Appellees. The district court
entered its order after precluding Dr. Lawrence’s testimony on
causation. Because we determined the court erred in determin-
ing Dr. Lawrence was unqualified to testify as to causation on
the sole issue of Joaquin’s injuries suffered as a consequence
of Dr. Joekel’s failure to admit, monitor, and treat Joaquin
for his seizure and because this testimony did not amount to
loss-of-chance testimony, the court erred in not considering
Dr. Lawrence’s causation testimony on the motion for sum-
mary judgment. Therefore, we reverse the court’s order on
Appellees’ motion for summary judgment and remand the mat-
ter for further proceedings consistent with this opinion.
- 799 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764VI. CONCLUSION
We conclude the district court erred in determining that Dr.
Lawrence was unqualified under § 27-702 to testify on cau-
sation as to the injuries Joaquin suffered due to Dr. Joekel’s
failure to hospitalize and treat Joaquin for his seizure, the sole
causation opinion offered by Dr. Lawrence which was stated
with the degree of certainty or probability necessary to make
it relevant. We affirm the district court’s order as to all other
testimony on causation as being irrelevant loss-of-chance testi-
mony. We additionally conclude the district court erred in fail-
ing to provide its reasoning for overruling Appellants’ objec-
tions to the affidavits of Drs. Pavkovic and Chatterjee. Because
the court erred in precluding Dr. Lawrence’s testimony on cau-
sation as provided above, the court erred in granting Appellees’
motion for summary judgment. Accordingly, we affirm in part,
and in part reverse and remand for further proceedings in com-
pliance with this opinion.
A ffirmed in part, and in part reversed and
remanded for further proceedings.
Bishop, Judge, concurring in part, and in part dissenting.
I would affirm the district court’s decision to exclude the
testimony of Dr. Lawrence and thus would affirm the sum-
mary judgment order in favor of the appellees. Under the
Daubert/Schafersman framework, a trial court must ultimately
determine whether the expert has presented enough rational
explanation and empirical support to justify admitting his or
her opinion into evidence. See Zimmerman v. Powell, 268
Neb. 422, 684 N.W.2d 1 (2004). The district court performed
its Daubert/Schafersman gatekeeping function; therefore, this
court reviews the district court’s decision to admit or exclude
expert testimony for an abuse of discretion. See Hemsley v.
Langdon, 299 Neb. 464, 909 N.W.2d 59 (2018). This dissent
addresses only those portions of the majority opinion related
to Dr. Lawrence’s causation opinion on the appellees’ failure to
hospitalize, treat, and control Joaquin’s seizure; I find no abuse
- 800 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764of discretion by the district court in excluding this testimony. I
concur with the remainder of the majority opinion.
The district court determined that Dr. Lawrence was a quali-
fied expert in the field of emergency room medicine, but that
he was not qualified to render any opinions on the progress
or causation of Joaquin’s condition. The district court stated
that such opinions would require expertise and qualification
in the specialty of neurology and, specifically, child neurol-
ogy. As noted in the majority opinion, and as acknowledged
by the appellees, medical expert witnesses cannot be excluded
simply because they are not specialists in a particular school of
medical practice. See Carlson v. Okerstrom, 267 Neb. 397, 675
N.W.2d 89 (2004). Rather, experts are considered qualified 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. See id.There is no question that Dr. Lawrence was qualified to tes-
tify as an expert. However, I agree with the appellees that the
district court did not exclude Dr. Lawrence’s testimony based
upon his credentials (which is what the majority concludes);
rather, the district court determined Dr. Lawrence was not
qualified to render any opinions on the progress or causation of
Joaquin’s condition. This necessarily goes to the reliability or
validity of Dr. Lawrence’s reasoning or methodology to reach
his opinions, and the underlying facts or data to support them.
Although it would have been helpful for the district court to
more specifically explain the reason it found Dr. Lawrence was
not qualified to render a causation opinion, the court’s order
nevertheless sets forth an adequate basis to inform this court
as to its reason. See Zimmerman v. Powell, supra (trial court
need not recite Daubert standard, but must explain its decision
so that appellate court has adequate basis to determine whether
analytical path taken by trial court was within range of reason-
able methods for distinguishing reliable expert testimony from
false expertise).
- 801 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764Notably, the district court’s determination that opinions on
the progress or causation of Joaquin’s condition would require
expertise and qualification in the specialty of neurology and,
specifically, child neurology is supported by Dr. Lawrence’s
own testimony. Although Dr. Lawrence is certainly qualified
to testify about emergency room care, including the treatment
of seizures, he had not treated a patient with EBV meningo-
encephalitis before and he repeatedly deferred to specialists
in pediatric neurology and pediatric infectious diseases for
answers to questions related to Joaquin’s seizure and brain
injury. Those experts opined that Joaquin “suffered mild brain
damage as a result of the EBV encephalitis,” “something
about that virus’s presence is what leads to the brain injury,”
there was “no evidence that the seizure . . . contributed to any
brain injury,” “[t]he viral infection . . . caused Joaquin’s brain
injury,” and “[w]hether or not Joaquin was in the hospital at
the time he had a seizure would not have changed the ulti-
mate outcome and would not have prevented the brain damage
he suffered.”
Examples of Dr. Lawrence’s deference to those experts fol-
low: According to Dr. Joekel, EBV meningoencephalitis is a
“very rare complication of a fairly common viral infection.”
Dr. Lawrence agreed that having mononucleosis develop or
progress into encephalitis or meningitis is a “very uncom-
mon” condition. When Dr. Lawrence was asked if he had
ever treated a patient with mononucleosis that developed into
encephalitis or meningitis, he was “not certain if [he had] or
not.” After agreeing that Joaquin had a seizure because of
the “virus around his brain and in his spinal fluid” and that
“IV hydration and medicine” would not have prevented the
seizure, Dr. Lawrence testified that such treatment may have
decreased his chance of having it. However, Dr. Lawrence also
agreed that a pediatric neurologist or pediatric infectious dis-
ease expert would have more knowledge “about this area” than
he would. Dr. Lawrence also deferred to the pediatric neurolo-
gist specialist for an opinion on whether Joaquin’s seizure or
- 802 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764infection was more responsible for Joaquin’s brain injury.
Dr. Lawrence opined that both the seizure and the infection
caused Joaquin’s brain injury, but he was unable to render an
opinion as to which was more responsible. He testified, “I’d
have to defer that off to your pediatric neurologist that you
referenced. But I think it’s — clearly, it was both.” When
asked if Joaquin’s seizure could have been totally prevented,
Dr. Lawrence responded, “No. I never said that. I said his
chance of seizure would have been less. I can’t give you the
number, but — and, yes, a pediatric neurologist or pediatric
ID person would be able to better tell you that.” Additionally,
after stating that the “long seizure that [Joaquin] had [could]
cause some of the brain damage,” Dr. Lawrence was asked
whether that opinion was based on any literature or science.
He responded, “Nothing specific that I’ve looked at. But
based on my training, expertise, and years of working.” Dr.
Lawrence testified that “50 different journals” are sent to his
office which he reviews, but he did not review “any articles,
textbooks, or anything else” to come up with his opinions.
At the hearing on the admissibility of Dr. Lawrence’s opin-
ions, the appellees argued that his opinions were unreliable.
They asserted:
As set forth in our brief, Dr. Lawrence is not giving a
reliable opinion. And . . . that’s distinguishable from . . .
weight and credibility . . . . But the Court has a gatekeep-
ing function to not allow an unreliable opinion to come
before the jury. . . .
....
. . . So Dr. Lawrence testified that the child may not
have had as serious or as severe of a seizure if he had been
in the hospital . . . at the time. . . . [I]nstead of sending
him home . . . he would have had a seizure in the hospital
and it may or may not have been so severe as it was. And
our position in the briefing . . . is that that is an unreliable
opinion under Nebraska law, a loss of chance, because he
can’t say what the chance is of whether the seizure would
- 803 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764have happened, he can’t say what the chance is of how
serious it would have been, he just thinks that it may have
been less severe. And our position is that is not sufficient
to state a causation opinion under Nebraska law.
....
At the core, our motion is that [Dr. Lawrence] is not
giving a sufficiently reliable opinion that any of these
things would have made a difference in the outcome that
this child ultimately suffered in this case.
....
. . . Dr. Lawrence . . . says that the child may have had
a decreased chance of having a seizure or may have had
a less severe seizure. Saying it in that terminology we’re
saying is [an] unreliable opinion.
It is evident that the appellees did in fact challenge the reli-
ability of Dr. Lawrence’s opinions, which necessarily goes
to his underlying reasoning or methodology. See McNeel v.
Union Pacific RR. Co., 276 Neb. 143, 753 N.W.2d 321 (2008)
(preliminary assessment of whether reasoning or methodology
underlying testimony is valid and can be properly applied to
facts in issue establishes standard of evidentiary reliability).
The essence of Dr. Lawrence’s opinions is that Dr. Joekel
should have somehow anticipated Joaquin might have a sei-
zure 3 hours later and that therefore, Dr. Joekel should have
admitted Joaquin to the hospital so the anticipated seizure
could have been better controlled in a hospital environment.
However, Dr. Lawrence admitted that even if Joaquin had been
in the hospital, it may not have prevented him from having a
seizure; rather, he broadly asserts that the seizure could have
been treated “more quickly” which would have resulted in a
“decreased length of hypoxia” and a “decreased length of the
seizure,” which he claimed would have resulted in “a better
outcome.” However, he never explains how or why that would
have been the case given Joaquin’s “rare” or “very uncom-
mon” condition, and given his agreement that the seizure was
not a “febrile seizure,” but was instead caused by “this virus
- 804 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764around [Joaquin’s] brain and in his spinal fluid.” Nor does he
ever actually testify as to the duration of Joaquin’s seizure or
hypoxia, or what impact the infection itself may have had on
the duration of Joaquin’s seizure versus any delayed seizure
treatment. Nor does Dr. Lawrence explain why the professional
medical care Joaquin received from the emergency paramedics
or in the UNMC emergency room was any different in terms
of impact on the seizure as compared to the treatment Joaquin
would have received if he had been admitted earlier under Dr.
Joekel’s care. Further, Dr. Lawrence agreed patients could have
seizures without brain injury. Yet, he provided no authoritative
source or supporting data to support how, in this particular
instance, Joaquin’s seizure contributed to his brain injury other
than to say it was a “long seizure” and if he had been in the
hospital and had his seizure treated sooner, he would have had
a better outcome.
In Rankin v. Stetson, 275 Neb. 775, 749 N.W.2d 460 (2008),
a trial court excluded a neurosurgeon’s testimony who had
opined that the plaintiff would have recovered if surgical repair
had occurred within the first 72 hours after her injury and that
her chance of avoiding permanent injury decreased each day
after the 72-hour period. The trial court excluded the opinion
because the doctor failed to disclose the underlying facts or
data for his opinions and, further, because the doctor did not
qualify to give his opinion because he failed to set forth any
methodology from which it could be determined that his opin-
ions arose from facts or procedures that could be tested. In the
doctor’s deposition, he was asked for the basis of his opinion
concerning the 72-hour timeframe; the doctor was unable to
identify any specific article or peer-reviewed literature that
would support his opinion concerning the 72-hour period. The
Nebraska Supreme Court affirmed the trial court’s decision to
exclude the doctor’s testimony, pointing out that the doctor
was unable to say that his theory concerning the timeframe had
been tested in any way, he was unable to provide a basis for his
72-hour theory, he could not cite any peer-reviewed literature
- 805 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764to support his theory, and he did not provide any testimony
to suggest the 72-hour theory is generally accepted. Recently,
the Nebraska Supreme Court referred to Rankin v. Stetson,
supra, stating:
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 testi-
mony was valid and properly applied. We explained that
because the expert witness failed to disclose the underly-
ing facts or data for his opinions, he was not qualified to
testify to his opinion under § 27-702.
Hemsley v. Langdon, 299 Neb. 464, 475, 909 N.W.2d 59,
69 (2018).
Similarly here, as determined by the district court, Dr.
Lawrence was not qualified to give an opinion on the progress
or causation of Joaquin’s condition. He was unable to provide
a tested basis for how a “long seizure” occurring in a patient
with EBV meningoencephalitis caused or contributed to the
brain injury, he did not review or otherwise rely upon any peer-
reviewed literature or other medical data to support his theory,
and he did not provide any testimony to suggest his theory is
generally accepted. Rather, in Dr. Lawrence’s deposition, he
asserted that Joaquin had “a long seizure . . . what they call
status epilepticus, so his seizure was persistent” and that if he
had been in the hospital, he “would have been treated sooner.”
He went on to state:
But my opinion is that his chance of having a seizure
would have been less. The seizure caused hypoxia, which
caused a combination of — which, you know, he had to
be put on a tube. . . . [H]is pH was low, which related to
his lack of breathing, which could have caused some of
the brain damage also.
Although Dr. Lawrence states that Joaquin’s “lack of breath­
ing . . . could have caused some of the brain damage,” he
acknowledged that Joaquin was breathing on his way to UNMC
- 806 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764with the fire department paramedics and that Joaquin was in
the UNMC emergency room when he had “decreased respira-
tions” which necessitated him being intubated. Dr. Lawrence
was not critical of how the paramedics treated Joaquin on the
way to UNMC, stating that “they did everything appropriate as
far as giving medications and rushing him . . . to the hospital
quickly.” Nor was Dr. Lawrence critical of Joaquin’s treatment
in the UNMC emergency room. When asked if the UNMC
emergency room staff “acted very promptly when [Joaquin] had
respiratory issues, intubated him,” and so “it’s very unlikely he
had any damage from their quick reaction to [Joaquin’s] respi-
ratory dysfunction,” Dr. Lawrence responded, “I think they did
a good job. I’m not critical of their care at all.”
Also, although Dr. Lawrence claimed that the hypoxia began
“from the time [Joaquin] started his seizure,” he admitted
that he had seen plenty of patients who have ongoing sei-
zures who do not end up with a brain injury. He appeared to
distinguish Joaquin’s situation by saying that Joaquin “had a
long extrapolated seizure.” When asked how long the seizure
was, Dr. Lawrence said, “Well, it started at home. We could
pull the records and give it.” However, there was never a
response regarding the length of Joaquin’s seizure, nor how
the length of Joaquin’s seizure may have compared to other
patients with EBV meningoencephalitis who also suffered a
seizure. When asked if admitting Joaquin to the hospital 3
hours prior to the seizure would have prevented the seizure, Dr.
Lawrence responded:
I didn’t say that. I said his chance of having a seizure
was less. I can’t tell you that number. But if he did have
a seizure, the seizure would more than likely, because he
was in the hospital . . . then they could have more quickly
treated his seizure with medications 20 to 30 minutes
sooner in his seizure.
....
. . . My opinion would be that he — his seizure
— they would have decreased the chance of having
- 807 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764the seizure. He would have had a decreased length of
hypoxia, decreased length of the seizure, and would have
had a better outcome, which, with the reasonable degree
of medical certainty, that he would not have had the cra-
niotomy and all the procedures that followed that.
While this reads like loss-of-chance testimony to me, it also
provides no foundational basis for how a decreased length of
seizure would have resulted in a better outcome in a situation
where Dr. Lawrence agreed the seizure was caused by a “virus
around [Joaquin’s] brain and in his spinal fluid,” and he agreed
the EBV meningoencephalitis was a cause of the brain injury.
Although Dr. Lawrence alludes to Joaquin being treated with
medications “20 to 30 minutes sooner” if he had been in the
hospital, Dr. Lawrence provides no foundational basis for his
reference to “20 to 30 minutes” or how earlier medication
would have decreased the length of hypoxia or decreased the
length of the seizure. Based upon Dr. Lawrence’s testimony
that the paramedics transporting Joaquin from his home “did
everything appropriate as far as giving medications and rush-
ing him . . . to the hospital,” and further, that the UNMC emer-
gency room staff “did a good job” and he was “not critical of
their care at all,” this leaves only the time from when Joaquin
started having a seizure at home until the paramedics arrived as
the period of time during which Joaquin was not being treated
by medical professionals. Dr. Lawrence did not testify as to
how long a period of time that was, nor did he opine that this
initial period of seizure activity was the cause of Joaquin’s
brain injury. Rather, his focus was on the duration of the sei-
zure and the hypoxia.
However, Dr. Lawrence fails to account for why Joaquin’s
seizure persisted despite being under professional medical
care from the time the paramedics arrived through his care
in the UNMC emergency room and thereafter. Dr. Lawrence
fails to distinguish Joaquin’s emergency medical care from
the medical care Joaquin would have received if he had been
admitted 3 hours earlier and how that distinction would have
- 808 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
GONZALES v. NEBRASKA PEDIATRIC PRACTICE
Cite as 26 Neb. App. 764impacted the duration of Joaquin’s seizure and/or the hypoxia.
Dr. Lawrence was unable to provide any authoritative source
or supporting data for his opinions; rather, it was simply his
subjective belief that the duration of the seizure and hypoxia
contributed to Joaquin’s brain injury and that if he had been
in the hospital at the onset of the seizure, he would have had
a better outcome. An expert’s opinion must be based on good
grounds, not mere subjective belief or unsupported specula-
tion. King v. Burlington Northern Santa Fe Ry. Co., 277 Neb.
203, 762 N.W.2d 24 (2009). Dr. Lawrence failed to present
enough rational explanation and empirical support to jus-
tify admitting his opinion into evidence. See Zimmerman v.
Powell, 268 Neb. 422, 684 N.W.2d 1 (2004). The district court
did not abuse its discretion by excluding Dr. Lawrence’s cau-
sation testimony, and therefore, its summary judgment order
should be affirmed.