State v. Herrera

856 N.W.2d 310

State of Nebraska, Appellee

v.Carlos R. Herrera, Appellant.

No. S–13–659

Supreme Court of Nebraska.

Filed December 5, 2014

David S. MacDonald, Deputy Scotts Bluff County Public Defender, for appellant.

Jon Bruning, Attorney General, and George R. Love, Lincoln, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Rules of Evidence.In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.

2. Expert Witnesses: Appeal and Error.The standard for reviewing the admissibility of expert testimony is abuse of discretion.

3. Trial: Expert Witnesses: Appeal and Error.An appellate court reviews the record de novo to determine whether a trial court has abdicated its gatekeeping function when admitting expert testimony.

4. Trial: Expert Witnesses.Under the principles set forth in 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), the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion.

5. 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.

6. Trial: Expert Witnesses: Intent.The intent of the test 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), was to relax the traditional barriers to expert testimony by permitting courts to receive expert testimony based on “good science” even before that science became generally accepted.

7. Pretrial Procedure: Expert Witnesses.A challenge to the admissibility of evidence 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. It should identify, in terms of the Daubert /Schafersman factors, what is believed to be lacking with respect to the validity and reliability of the evidence and any challenge to the relevance of the evidence to the issues of the case. In order to preserve judicial economy and resources, the motion should include or incorporate all other bases for challenging the admissibility, including any challenge to the qualifications of the expert.

8. Trial: Expert Witnesses.Before admitting expert opinion testimony, the trial court must determine whether the expert's knowledge, skill, experience, training, and education qualify the witness as an expert.

9. Trial: Expert Witnesses.If an expert's opinion involves scientific or specialized knowledge, a trial court considering a motion 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 determine whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology can be properly applied to the facts in issue. Several nonexclusive factors are considered in making this determination: (1) whether a theory or technique can be (and has been) tested; (2) whether it has been subjected to peer review and publication; (3) whether, in respect to a particular technique, there is a high known or potential rate of error; (4) whether there are standards controlling the technique's operation; and (5) whether the theory or technique enjoys general acceptance within a relevant scientific community.

10. Trial: Expert Witnesses.In addition to determining the scientific reliability of proffered expert testimony, a trial court's gatekeeping function under the standard of Daubert v. Merrell Dow Pharmaceuticals, Inc.,509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop,262 Neb. 215, 631 N.W.2d 862 (2001), requires that it determine whether such opinion testimony can properly be applied to the facts at issue. This inquiry, sometimes referred to as “fit,” assesses

whether the scientific evidence will assist the trier of fact to understand the evidence or to determine the fact in issue by providing a valid scientific connection to the pertinent inquiry as a precondition to admissibility.

11. Trial: Expert Witnesses.Under the analysis in 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), expert testimony lacks “fit” when a large analytical leap must be made between the facts and the opinion.

12. Trial: Expert Witnesses.A court performing an inquiry 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 not require absolute certainty, but should admit expert testimony if there are good grounds for the expert's conclusion, even if there could possibly be better grounds for some alternative conclusion.

13. Rules of Evidence: Hearsay: Proof.In order for statements to be admissible under Neb. Evid. R. 803(3), Neb.Rev.Stat. § 27–803(3) (Reissue 2008), the party seeking to introduce the evidence must demonstrate (1) that the circumstances under which the statements were made were such that the declarant's purpose in making the statements was to assist in the provision of medical diagnosis or treatment and (2) that the statements were of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional.

14. Rules of Evidence: Hearsay.Statements admissible under Neb. Evid. R. 803(3), Neb.Rev.Stat. § 27–803(3) (Reissue 2008), need not be made to a physician.

15. Rules of Evidence: Hearsay: Appeal and Error.A statement gathered for dual medical and investigatory purposes can be admissible under Neb. Evid. R. 803(3), Neb.Rev.Stat. § 27–803(3) (Reissue 2008). The question is whether the statement, despite its dual purpose, was made in legitimate and reasonable contemplation of medical diagnosis or treatment. Whether a statement was taken and given in contemplation of medical diagnosis or treatment is a factual finding by the trial court, and an appellate court reviews that determination for clear error.

16. Evidence: Appeal and Error.Error can be based on a ruling that admits evidence only if the specific ground of objection is apparent either from a timely objection or from the context.

17. Pretrial Procedure: Trial: Evidence: Appeal and Error.Where there has been a pretrial ruling regarding the admissibility of evidence, a party must make a timely and specific objection to the evidence when it is offered at trial in order to preserve any error for appellate review.

18. Trial: Waiver: Appeal and Error.One may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error.

Opinion

Stephan, J.

Carlos R. Herrera and Jennifer Herrera are the biological parents of A.H. and S.H., both minor children. In 2012, Carlos and Jennifer were separately charged in the district court for Scotts Bluff County with child abuse resulting in serious bodily injury to A.H. Following a consolidated jury trial, both were convicted of the lesser-included offense of child abuse. Carlos perfected this timely direct appeal.

I. BACKGROUND

In an information filed on November 15, 2012, Carlos was charged with one count of intentional child abuse resulting in serious bodily injury, a Class II felony.¹ The alleged victim was A.H., and the alleged abuse occurred in Scotts Bluff County between January 2007 and October 12, 2011. A.H. was born on November 1, 2005. Similar charges were filed against Jennifer, and the two cases were subsequently consolidated for trial, at which Carlos and Jennifer were represented by separate counsel.

1. Pretrial Motions

(a) Daubert /Schafersman Hearing

Prior to trial, Carlos filed a motion requesting a Daubert / Schafersman² hearing on the admissibility of expert testimony related to the medical diagnosis of “psychosocial dwarfism.” Jennifer joined in this motion. At this hearing, the State presented two witnesses. Dr. Bruce Buehler, a geneticist and pediatrician, testified first. He explained that psychosocial dwarfism is also known as psychosocial short stature (PSS).

Although various witnesses used the two terms interchangeably, the district court utilized the PSS nomenclature, and we do likewise.

Buehler testified that PSS occurs when the body stops making growth hormone in response to a stressful environment. He stated that PSS can be diagnosed by measuring the body's production of growth hormone before and after changing the individual's environment. If the production increases substantially after the change, the diagnosis is made. Buehler also testified that the diagnosis can be made empirically if only one variable, the individual's environment, is changed and growth then occurs.

Buehler testified that he first saw A.H. in approximately 2011. At the time, A.H. presented with short stature, failure to thrive, and developmental delays. Buehler did a myriad of tests on A.H. in order to discover why he was not growing. These included metabolic tests, chromosomal tests, and autism tests. According to Buehler, he tested for every possible known medical reason for A.H.'s lack of growth and found nothing. After A.H. was removed from his parents' home, his growth increased substantially, without medical intervention. That growth empirically proved to Buehler that A.H.'s condition was PSS. Buehler testified that while it is rare, the diagnosis of PSS has been...