Gonzales v. Nebraska Pediatric Practice, 955 N.W.2d 696

Background

In August 2012, 5‑year‑old Joaquin presented with symptoms diagnosed as mononucleosis; hours after discharge he seized and was later diagnosed with EBV meningoencephalitis, suffered brain injury, and required neurosurgery and rehabilitation.
Parents Gonzales and Rojas sued Dr. Corey Joekel and Nebraska Pediatric Practice for medical malpractice, alleging Joekel misdiagnosed and failed to admit/treat Joaquin, causing the brain injury.
Plaintiffs disclosed Dr. Todd Lawrence (family/emergency physician) to opine on causation; defendants moved to exclude his testimony under Nebraska’s Schafersman/Daubert framework and sought summary judgment on causation grounds.
The district court initially excluded portions of Lawrence’s testimony and granted summary judgment; the Nebraska Court of Appeals reversed in part, holding Lawrence was qualified and remanding for further proceedings.
On remand defendants presented new expert Dr. Daniel Bonthius and renewed Schafersman objections; the district court then excluded Lawrence again and granted summary judgment. Plaintiffs appealed to the Nebraska Supreme Court.
The Nebraska Supreme Court held the Court of Appeals’ prior opinion established the admissibility of Lawrence’s testimony under the law‑of‑the‑case doctrine, reversed the exclusion and summary judgment, and remanded for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether law‑of‑the‑case precluded renewed Schafersman challenges to Lawrence on remand	Court of Appeals already found Lawrence admissible; defendants cannot relitigate on remand	New evidence/expert (Bonthius) justified reexamination of admissibility	Held: Law of the case bars renewed Schafersman challenge; Court of Appeals’ ruling conclusively settled admissibility absent materially different facts
Whether the district court properly excluded Lawrence’s testimony under Schafersman (Daubert) factors	Lawrence is qualified and his testimony meets reliability/relevance requirements	Lawrence’s methodology/opinion are unreliable and improperly applied; Bonthius and medical literature rebut Lawrence	Held: Exclusion was error because the COA previously determined Lawrence admissible and defendants had waived/failed to preserve separate Schafersman challenges pre‑remand
Whether admission of defendants’ experts (and form of their testimony) on remand violated procedural rules	Plaintiffs argued form/receipt of defendants’ video and affidavit were improper	Defendants complied with notice rules; affidavit properly included nunc pro tunc	Held: Supreme Court did not resolve these arguments as unnecessary to decision (court limited review to law‑of‑the‑case and summary judgment ramifications)
Whether summary judgment was proper after exclusion of Lawrence	Plaintiffs: excluding Lawrence eliminates genuine dispute on causation? No—Lawrence should be admitted and creates dispute	Defendants: without Lawrence plaintiffs cannot prove causation; summary judgment appropriate	Held: Reversed summary judgment because admitting Lawrence leaves a genuine dispute on causation and summary judgment was unwarranted

Key Cases Cited

Schafersman v. Agland Coop, 262 Neb. 215 (2001) (adopted Daubert‑style gatekeeping factors for expert testimony in Nebraska)
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (test for admissibility of expert scientific testimony)
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping applies to all expert testimony, not only pure sciences)
General Elec. Co. v. Joiner, 522 U.S. 136 (1997) (standard for appellate review of trial court’s admissibility rulings)
Gonzales v. Nebraska Pediatric Practice, 26 Neb. App. 764 (2019) (Neb. Ct. App. decision holding Lawrence qualified and remanding)
TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493 (2020) (describing law‑of‑the‑case principles)