Evans v. Freedom Healthcare, 311 Neb. 336

Background:

Plaintiff Warren Evans received platelet-rich plasma (PRP) knee injections at Freedom Healthcare in February 2018; procedure performed by a physician assistant who drew/centrifuged his blood and injected both knees.
Evans developed worsening right-knee pain the next day, was hospitalized with a polymicrobial septic knee infection, underwent multiple surgeries, and alleged the infection was caused by the clinic’s breach of sterile technique.
Defense evidence (Dr. David Brown) characterized post‑injection joint infection as rare (estimated 1:3,000–1:50,000) and consistent with an inherent, though uncommon, risk of intra-articular injections.
Plaintiff’s expert (Dr. Scott Swanson) testified that a polymicrobial joint infection of this type is not seen absent a significant breach of sterile technique and opined such a breach violated the standard of care; he also acknowledged lacking information about the clinic’s specific sterility protocols.
The district court granted summary judgment for Freedom Healthcare, concluding plaintiff lacked competent expert proof and that res ipsa loquitur did not apply; the Nebraska Supreme Court reversed and remanded.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether pleading specific negligence bars invocation of res ipsa loquitur at summary judgment	Evans: res ipsa is an evidentiary rule and may be pleaded alongside specific negligence; should be considered at summary judgment	Freedom: pleading specific negligence precludes res ipsa	Court: Reversed district court — res ipsa may be considered; pleading both is permitted at this stage
Whether plaintiff produced adequate expert evidence to create a triable issue on breach of standard of care	Swanson’s opinion that infection could not occur absent a significant sterile breach creates a genuine issue	Defense: Swanson’s testimony was inconsistent/insufficient; Brown showed care met the standard	Court: Swanson’s testimony was not inconsistent and was sufficient to raise a material factual dispute
Whether res ipsa loquitur applies so negligence can be inferred at summary judgment	Evans: infection unlikely absent negligence; instrumentality under clinic control; no explanation given — res ipsa elements met	Freedom: infections, though rare, can occur as a known risk; res ipsa inappropriate	Court: Evidence permissibly supports each res ipsa element for reasonable jurors; res ipsa inference should go to factfinder
Whether the court may weigh expert credibility/competing evidence on summary judgment	Evans: court must view evidence and reasonable inferences in plaintiff’s favor, not weigh experts	Freedom: district court weighed perceived inconsistencies and credited defense expert	Court: Court must not weigh evidence at this stage; it should determine only whether reasonable persons could find for plaintiff

Key Cases Cited

Rodriguez v. Lasting Hope Recovery Ctr., 308 Neb. 538, 955 N.W.2d 707 (appellate summary judgment standard)
Lombardi v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (expert testimony normally required in medical‑malpractice to create material fact)
Hemsley v. Langdon, 299 Neb. 464, 909 N.W.2d 59 (elements of medical malpractice claim)
Anderson v. Union Pacific R.R. Co., 295 Neb. 785, 890 N.W.2d 791 (res ipsa is a rule of evidence, not a pleading bar)
Keys v. Guthmann, 267 Neb. 649, 676 N.W.2d 354 (situations where negligence may be inferred under res ipsa)
McLaughlin Freight Lines v. Gentrup, 281 Neb. 725, 798 N.W.2d 386 (at summary judgment, court must not weigh evidence when evaluating res ipsa applicability)
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (standards for admissibility of expert testimony)
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (Nebraska guidance on expert testimony admissibility)
Roberts v. Weber & Sons Co., 248 Neb. 243, 533 N.W.2d 664 (elements of res ipsa loquitur)
Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (res ipsa permits inference of negligence when facts speak for themselves)