Carson v. Steinke
989 N.W.2d 401
Neb.2023Background
- In 2015 at St. Francis Medical Center (Grand Island, NE), Dr. Rebecca Steinke responded to fetal heart rate decelerations, ruptured the mother's amniotic sac to place an internal monitor, felt a cord prolapse, and called for an emergency C-section; the infant, Boston, was born not breathing and required resuscitation and later NICU care under Dr. Douglas Boon.
- Boston was later diagnosed on problem lists with possible hypoxic ischemic encephalopathy (HIE) and, as he grew, showed developmental delays and behavioral/educational needs; his parents sued Steinke and Boon for medical malpractice on behalf of Boston and individually.
- Plaintiffs’ experts: Dr. Scott Nau (Iowa pediatrician) sought to testify to the standard of care for Boon but had never practiced in Grand Island, had done no investigation into local resources, and based comparisons on his experience in Cedar Rapids; Dr. David Demarest had evaluated Boston but had earlier disclaimed offering causation opinions in his deposition; Dr. Kelly Elmore opined Steinke’s membrane rupture worsened the fetal heart rate and that an immediate C-section would have been beneficial but offered clinical, somewhat speculative causation testimony.
- The district court excluded Nau’s testimony for lack of foundation under the locality rule and excluded Demarest’s testimony for failing to disclose a causation opinion in discovery and for lack of foundation; it allowed Elmore’s testimony but found it speculative.
- At the close of plaintiffs’ case the court granted directed verdicts for both defendants (Boon and Steinke) for failure to present admissible expert proof on the applicable standard of care and on causation; plaintiffs’ motion for new trial was denied.
- The Nebraska Supreme Court affirmed, holding the locality requirement for standard-of-care testimony applies, that national-standard testimony is admissible only if the expert shows the national standard does not differ in the defendant’s community or a similar community, that Demarest’s undisclosed/causation evidence was properly excluded, and that Elmore’s testimony was too speculative to prove causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Nau could testify to the applicable standard of care without direct familiarity with Grand Island or a similar community | Nau should be permitted to testify (national standard/uniform pediatric standards); lack of local practice history goes to weight, not admissibility | Expert lacked foundation/familiarity with local resources and practices required by § 44-2810 and controlling case law | Exclusion affirmed; proponent must show expert familiarity with defendant’s community or a similar community in medically relevant terms |
| Whether a national standard of care may substitute for local familiarity | National standard applies because pediatric standards are uniform and AAP guidance is nationwide | Locality rule governs; national standard may be admitted only if expert shows no difference between national standard and local or similar community standard | Court declined to abolish locality rule; national standard admissible only if expert establishes it does not differ locally |
| Whether Demarest could testify that Boston’s condition was “consistent with” HIE despite prior deposition disclaimers | "Consistent with" is explanatory, not an affirmative causation opinion, and should be admitted | Demarest disclaimed causation at deposition; admitting new causation-related opinion would be unfair discovery surprise and lacked foundation | Exclusion affirmed: undisclosed causation opinion was unfair surprise and, absent disclosure/foundation, properly excluded |
| Whether directed verdicts were proper given the record (standard of care, breach, proximate cause) | Combined expert testimony (Nau, Demarest, Elmore) was sufficient for a jury to find breach and causation | Plaintiffs presented no admissible expert proof of the applicable standard for Boon and only speculative causation proof re: Steinke | Directed verdicts affirmed: no admissible expert proof on standard for Boon; Elmore’s causation testimony too speculative to prove proximate cause for Steinke |
Key Cases Cited
- Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001) (sets trial-court gatekeeping factors for assessing expert reliability)
- Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589 (2012) (expert experience alone insufficient without showing familiarity with defendant’s locality)
- Capps v. Manhart, 236 Neb. 16, 458 N.W.2d 742 (1990) (expert may testify to local standard if he affirmatively demonstrates familiarity with that locality or similar communities)
- Paulk v. Central Lab. Assocs., 262 Neb. 838, 636 N.W.2d 170 (2001) (undisclosed expert opinions in deposition may be excluded as unfair discovery surprise)
- Estate of Hagedorn, 690 N.W.2d 84 (Iowa 2004) (locality rule requires consideration of facilities, personnel, services, and equipment when comparing communities)
- Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011) (national/regional standard may be admissible if expert explains why it applies to the local community)
- Lewison v. Renner, 298 Neb. 654, 905 N.W.2d 540 (2018) (causation testimony must be more than speculative; must be at least probable)