Yagodinski v. Sutton, 309 Neb. 179

In 2011 Gina Yagodinski was rear-ended by Brad Sutton and later sued for injuries including headaches and neck pain; she dropped special damages and proceeded on general damages.
Yagodinski consulted Dr. John McClaren, a licensed chiropractor who diagnosed "vestibular post-concussive syndrome" (described as a mild traumatic brain injury) and attributed it to the 2011 collision.
The defense moved to exclude McClaren’s opinion that she suffered a traumatic brain injury as outside his expertise and under Daubert/Schafersman reliability standards; the trial court initially excluded the testimony.
At trial McClaren testified about whiplash and permanency; the jury returned a $5,000 verdict for Yagodinski. On appeal the Nebraska Supreme Court remanded because the record lacked a definitive ruling on the offer of proof.
On remand the court received evidence that McClaren held postgraduate chiropractic neurology certifications, used optical testing (including a saccadometer) and a neuropsychological battery to diagnose concussion, and that a board-certified neurologist disputed the reliability and acceptance of those methods.
The trial court again excluded McClaren’s traumatic-brain-injury opinion, finding (1) his diagnostic methods fell outside the statutory scope of chiropractic practice in Nebraska and (2) the opinion failed Daubert/Schafersman review; the Nebraska Supreme Court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a licensed chiropractor may offer expert opinion that a patient sustained a traumatic brain injury from the collision	McClaren’s diagnosis is within chiropractic scope or, alternatively, his postgraduate training as a "chiropractic neurologist" qualifies him to testify about TBI	The diagnosis and the diagnostic methods used are outside the statutory scope of chiropractic practice and are unreliable under Daubert/Schafersman	Court held McClaren may testify about whiplash but not about TBI; exclusion affirmed because the diagnostic methods and TBI diagnosis fall outside the statutory chiropractic scope
Whether additional education/credentials allow a chiropractor to expand scope of practice and testify about conditions outside statutory limits	McClaren’s extensive neurology training, board certification, and use of medical testing make him qualified to render a TBI opinion	Scope of practice is defined by statute and cannot be expanded by extra training absent additional licensure or statutory change	Court held additional education/credentials do not expand the legislative scope of chiropractic practice; only the Legislature can enlarge authorized practice areas

Daubert v. Merrell Dow Pharm., 509 U.S. 579 (U.S. 1993) (framework for admissibility of scientific expert testimony)
Schafersman v. Agland Coop, 262 Neb. 215 (Neb. 2001) (Nebraska application of Daubert reliability 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) (recognizing qualification of chiropractors to testify within their practice scope)
Rodgers v. Sparks, 228 Neb. 191 (Neb. 1988) (frames expert qualification question as whether opinion falls within chiropractic field)
Carlson v. Okerstrom, 267 Neb. 397 (Neb. 2004) (expert must be qualified by knowledge, skill, experience, training, or education)