Yagodinski v. Sutton

309 Neb. 179

959 N.W.2d 541

Gina YAGODINSKI, appellant,

v.Brad SUTTON, appellee.

No. S-20-317.

Supreme Court of Nebraska.

Filed May 14, 2021

James E. Harris and Britany S. Shotkoski, of Harris & Associates, P.C., L.L.O., Omaha, for appellant.

Thomas A. Grennan, Omaha, and Eric J. Sutton, of Gross & Welch, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Stacy, J.

The primary question in this appeal is whether a licensed chiropractor in Nebraska was qualified to offer expert opinion testimony that his patient sustained a traumatic brain injury in a motor vehicle collision. The district court excluded such opinion testimony on several grounds, including that the opinion was outside the scope of chiropractic practice and licensure in Nebraska. We affirm.

I. BACKGROUND

In 2011, Gina Yagodinski's vehicle was struck from behind by a vehicle operated by Brad Sutton. In 2015, Yagodinski filed a lawsuit against Sutton in the district court for Douglas County. Her operative complaint alleged the collision was caused by Sutton's negligence and resulted in Yagodinski's sustaining "permanent and painful injuries which have been diagnosed as persistent/recurrent neck, thoracic and spine pain, and headaches." The complaint sought to recover both special and general damages. Eventually, Yagodinski dropped her claim for special damages and proceeded to trial seeking only general damages.

During the pendency of this action, Yagodinski was referred to Dr. John McClaren, a licensed chiropractor in La Vista, Nebraska. McClaren examined Yagodinski and diagnosed her with "vestibular post-concussive syndrome," which he concluded was caused by the 2011 collision. The parties generally describe this diagnosis as an opinion that Yagodinski sustained a mild traumatic brain injury in the collision.

The defense moved in limine to preclude McClaren from offering any opinion testimony regarding his diagnosis of a traumatic brain injury, arguing generally that such testimony was inadmissible under the Nebraska Evidence Rules and the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. ,¹ and Schafersman v. Agland Coop² ( Daubert / Schafersman ). At the hearing on the motion in limine, both parties offered evidence, which we summarize briefly now and discuss in more detail later.

Yagodinski offered evidence that in addition to McClaren's chiropractic education and training, he pursued specific education and training in the diagnosis of traumatic brain injury, and that he holds himself out as a "chiropractic neurologist." The defense offered evidence from a licensed medical neurologist that the methods used by McClaren to diagnose traumatic brain injury were not generally accepted by medical neurologists.

In a written order, the trial court sustained the motion in limine and precluded McClaren from testifying that Yagodinski sustained a traumatic brain injury in the collision. Citing to this court's opinions in Floyd v. Worobec³ and Fries v. Goldsby ,⁴ the court generally reasoned that McClaren, as a licensed chiropractor, was qualified to testify to matters within the scope of his chiropractic licensure. But the court found McClaren was not qualified to testify about the diagnosis and treatment of traumatic brain injuries, reasoning that such injuries were outside the scope of chiropractic care in Nebraska. The court also found that McClaren's diagnosis of traumatic brain injury was inadmissible under Daubert / Schafersman .

Yagodinski moved the court to reconsider its ruling and to allow McClaren to offer his opinion that Yagodinski sustained a traumatic brain injury in the collision. The court overruled that request, and the matter proceeded to a jury trial.

1. TRIAL

At trial, in addition to her own testimony, Yagodinski offered the testimony of her parents, a coworker, and her husband. These witnesses testified, summarized, that Yagodinski was athletic and active before the collision, but experienced pain and discomfort after the collision and was generally less active.

Both parties offered expert testimony at trial. Yagodinski called McClaren, who testified that Yagodinski was referred to him approximately 5½ years after the collision. McClaren obtained a history from Yagodinski and reviewed her prior treatment records which, according to McClaren, showed that she reported neck stiffness and headaches a few hours after the collision. McClaren testified those symptoms improved with chiropractic physiotherapy, but Yagodinski continued to experience headaches, neck pain, and back pain. Based on his experience, education, and training, McClaren opined to a reasonable degree of chiropractic certainty that Yagodinski sustained cervical whiplash injuries as a result of the collision and that her residual symptoms were permanent.

At the conclusion of McClaren's testimony, and outside the presence of the jury, Yagodinski's counsel made an offer of proof. The judge left the courtroom during the offer of proof, with the parties’ consent. Counsel for Yagodinski made a record that, if permitted, McClaren would have testified about the diagnostic tests he performed on Yagodinski and would have offered his opinion that she sustained a mild traumatic brain injury caused by the 2011 collision. Defense counsel objected to the offer of proof, and both parties offered exhibits to support their respective positions. The trial record contains no rulings on the offer of proof.

When trial resumed, the defense offered the deposition testimony of Dr. Joel Cotton, who described himself as a physician and board-certified neurologist practicing in Nebraska. Cotton testified that he reviewed Yagodinski's hospital and medical records, her acupuncture and massage records, and her chiropractic records. He also reviewed records from the sports club where Yagodinski participated in kickboxing and some of her employment records. Based on his review of those records and his training, knowledge, and experience, Cotton opined to a reasonable degree of medical certainty that Yagodinski experienced a "temporary cervical sprain or strain" as a result of the collision, but did not suffer any permanent injury. In Cotton's opinion, Yagodinski reached maximum medical improvement within about 2 months after the collision, and any treatment she sought after that point was unrelated to the collision.

The jury returned a general verdict in favor of Yagodinski in the amount of $5,000. The trial court entered judgment in that amount the following day.

2. FIRST APPEAL

Yagodinski appealed the judgment, assigning error to the trial court's exclusion of McClaren's diagnosis regarding mild traumatic brain injury. The appellate briefing generally treated the offer of proof as though it had been considered and overruled by the trial court, but in an unpublished memorandum opinion, we found the record did not support such an assumption. We expressed concern that the judge's absence from the courtroom during the offer of proof prevented a ruling on the offer and defeated a primary purpose of the exercise, which was to provide the trial court an opportunity to reconsider its preliminary evidentiary ruling in the context of all the evidence.⁵

We also explained that an appellate court reviews for an abuse of discretion a trial court's ruling on whether to admit or exclude expert testimony⁶ and that we were not able to conduct such a review because we could not tell from the record whether a ruling had been made on the offer of proof and, if so, the basis for such ruling. We therefore reversed, and remanded with instructions that the court make the necessary rulings to facilitate appellate review. Specifically, we directed:

Upon remand, the court shall determine whether McClaren is qualified as an expert and if so, whether the proffered opinions are within the scope of that expertise. If so, the district court shall determine, on the existing record, whether the excluded testimony, in whole or in part, is scientifically valid and reliable under the Daubert / Schafersman analysis.... If, after making the necessary specific findings, the court concludes that none of McClaren's excluded testimony is admissible, the court shall reinstate the judgment upon the jury's verdict. If the court concludes that any or all of the excluded testimony is admissible, the court shall order a new trial only on the issue of damages.

3. PROCEEDINGS ON REMAND

On remand, the trial court received into evidence the exhibits previously offered in support of, and in opposition to, Yagodinski's offer of proof. Additionally, it received the entire bill of exceptions from trial and it took judicial notice of the Nebraska statutes and administrative regulations governing chiropractic licensure, and the scope of chiropractic practice, in Nebraska. As relevant to the issues on appeal, we summarize the evidence considered by the trial court on remand.

(a) McClaren's Deposition and Affidavit

In his discovery deposition, McClaren described himself as "a board-certified chiropractic neurologist." He obtained this certification in 2005 through the American Chiropractic Neurology Board, which required a minimum of 300 hours of postgraduate education in neurology and a board examination. To obtain the required education in neurology, McClaren attended the Carrick Institute; an affidavit from Dr. Frederick Carrick was received as part of Yagodinski's offer of proof and is discussed later. In 2014, McClaren performed clinical rounds at the Carrick Brain Center, and in 2015, McClaren completed a 375-hour fellowship degree in "Brain Injury and Rehabilitation" from the American Board of Brain Injury and Rehabilitation.

McClaren testified that to diagnose Yagodinski's brain injury, he performed a series of optical examinations using various instruments, including a saccadometer. McClaren described the saccadometer as a "headgear with a laser" that "measures the amplitude, latency, and...