Yagodinski v. Sutton
309 Neb. 179
| Neb. | 2021Background
- In 2011 Gina Yagodinski was rear‑ended; she later consulted Dr. John McClaren, a licensed chiropractor who diagnosed "vestibular post‑concussive syndrome" (a mild traumatic brain injury) and attributed it to the collision.
- McClaren described himself as a board‑certified chiropractic neurologist with several hundred hours of postgraduate training and used optical tests (including a saccadometer) and a neuropsychological battery to reach his diagnosis.
- The defense moved to exclude McClaren’s TBI opinion under Nebraska’s expert‑testimony standards (Daubert/Schafersman); the trial court ruled the TBI opinion was outside the scope of chiropractic practice and excluded it. The jury nonetheless returned a $5,000 verdict for Yagodinski.
- On first appeal the Nebraska Supreme Court reversed and remanded because the record lacked a specific ruling on the offer of proof and the Daubert issues; it instructed the trial court to make explicit findings on qualification, scope, and scientific reliability.
- On remand the trial court took evidence (including statutory/regulatory materials) and found McClaren’s diagnostic methods and TBI opinion were not within the diagnostic methods authorized by the Chiropractic Practice Act (§ 38‑805) and also were not scientifically reliable; it again excluded the opinion and reinstated the judgment.
- The Nebraska Supreme Court affirmed: it held the statutory scope of chiropractic practice limits allowable diagnostic methods, additional training does not expand that statutory scope, and exclusion of the TBI opinion was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a licensed chiropractor may offer expert opinion that a patient sustained a traumatic brain injury (TBI) based on optical/neuropsychological testing | McClaren’s additional training and board certification in chiropractic neurology qualify him to diagnose TBI using the tests he administered; § 38‑805 is not a substantive barrier | TBI diagnosis and the testing methods McClaren used fall outside the diagnostic methods authorized by the Chiropractic Practice Act; methods also challenged under Daubert/Schafersman | Court: McClaren’s TBI diagnosis and the tests he used fall outside the statutory scope of chiropractic practice; additional education does not expand statutory scope; exclusion affirmed |
Key Cases Cited
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (U.S. 1993) (framework for admissibility of expert scientific testimony)
- Schafersman v. Agland Coop, 262 Neb. 215 (Neb. 2001) (Nebraska application of Daubert standards)
- Floyd v. Worobec, 248 Neb. 605 (Neb. 1995) (licensed chiropractor may testify as expert on matters within chiropractic scope)
- Fries v. Goldsby, 163 Neb. 424 (Neb. 1956) (courts defer to licensure limits when assessing expert qualification)
- Carlson v. Okerstrom, 267 Neb. 397 (Neb. 2004) (expert testimony admissible only if witness is qualified in subject matter)