Gonzales v. Nebraska Pediatric Practice
308 Neb. 571
Neb.2021Background
- In August 2012, 5-year-old Joaquin presented with EBV/mononucleosis and was seen twice; Dr. Corey Joekel discharged him on Aug. 7, and Joaquin later seized and was diagnosed with EBV meningoencephalitis, suffering brain injury.
- Plaintiffs (Gonzales/Rojas) sued Joekel and Nebraska Pediatric Practice for medical malpractice, alleging misdiagnosis/failure to admit and treat caused Joaquin’s injury.
- Plaintiffs proffered Dr. Todd Lawrence (family/emergency physician) to testify on causation; defendants moved to exclude his testimony under Nebraska’s Schafersman (Daubert-type) framework and moved for summary judgment.
- The district court initially excluded parts of Lawrence’s testimony and granted summary judgment; the Nebraska Court of Appeals reversed in part, holding Lawrence was qualified and finding other challenges arguably waived, and remanded.
- On remand defendants presented new expert evidence (Dr. Daniel Bonthius and others) and renewed Schafersman objections; the district court received Bonthius by live video, excluded Lawrence’s causation opinions, and again granted summary judgment.
- The Nebraska Supreme Court reversed the district court, holding the Court of Appeals’ prior ruling established the admissibility of Lawrence’s testimony under the law-of-the-case doctrine, so exclusion and summary judgment were erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court of Appeals’ prior decision precluded renewed Schafersman objections on remand (law of the case) | Court of Appeals resolved admissibility; remand cannot relitigate same objections | Renewed expert evidence and methodological challenges permit relitigation on remand | Held for plaintiffs: prior appellate ruling conclusively settled admissibility; defendants’ renewal precluded by law of the case |
| Whether Lawrence was qualified and his testimony admissible under Schafersman factors | Lawrence is qualified and his causation opinion is admissible; any attacks are for cross-examination at trial | Lawrence lacks requisite specialized methodology/reliability for causation opinion | Held for plaintiffs re: qualification; Court of Appeals had found him qualified and defendants had waived more specific Schafersman challenges |
| Whether defendants waived non-qualification Schafersman challenges by failing to make a sufficiently specific pretrial motion | Plaintiffs: defendants did not specifically identify which Schafersman factors were deficient, so those grounds were waived | Defendants: they sufficiently challenged reliability/methodology and may introduce new expert rebuttal on remand | Held for plaintiffs: Nebraska’s waiver rule applies; Court of Appeals treated non-specific challenges as waived, so they could not be relitigated on remand |
| Whether summary judgment was proper after exclusion of Lawrence | Lawrence’s testimony creates a genuine dispute on causation; summary judgment improper | Without Lawrence, plaintiffs cannot prove causation, so summary judgment is proper | Held for plaintiffs: exclusion of Lawrence was erroneous; with his testimony in the record a genuine causation dispute exists, so summary judgment was unwarranted |
Key Cases Cited
- Schafersman v. Agland Coop, 262 Neb. 215 (2001) (adopted Daubert-style gatekeeping and set four-factor Schafersman framework for expert admissibility in Nebraska)
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993) (federal standard for trial-court gatekeeping on expert reliability and relevance)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert framework applies to all expert testimony, including non-scientific)
- General Elec. Co. v. Joiner, 522 U.S. 136 (1997) (appellate standard reviewing exclusion of expert testimony)
- Gonzales v. Nebraska Pediatric Practice, 26 Neb. App. 764 (2019) (Neb. Ct. App. opinion that found Lawrence qualified and discussed waiver of unspecified Schafersman objections)