Yagodinski v. Sutton, 309 Neb. 179

In 2011 Gina Yagodinski was rear-ended by Brad Sutton and later sued for injuries she alleged were caused by the collision. She sought general damages at trial.
Yagodinski was examined years later by Dr. John McClaren, a licensed Nebraska chiropractor who diagnosed "vestibular post‑concussive syndrome" (described as a mild traumatic brain injury) based on optical exams, a saccadometer, dynamic visual testing, and a neuropsychological battery.
Sutton moved to exclude McClaren’s opinion that Yagodinski suffered a traumatic brain injury; the trial court initially sustained the motion and excluded that testimony as outside the scope of chiropractic practice and under Daubert/Schafersman rules.
The case went to trial without McClaren’s TBI opinion; a jury returned a $5,000 verdict for Yagodinski. On appeal the Nebraska Supreme Court remanded because the offer of proof had not been properly ruled on, directing the trial court to make specific findings.
On remand the trial court received additional evidence (including McClaren’s credentials and affidavits) but again excluded the TBI diagnosis, concluding the diagnostic methods and opinion fell outside the statutory scope of chiropractic practice; the court also found the methodology unreliable under Daubert/Schafersman but the Supreme Court affirmed exclusion on scope grounds alone.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a licensed chiropractor may offer expert testimony diagnosing a traumatic brain injury (TBI)	McClaren’s chiropractic neurology training and testing methods qualify him to diagnose TBI and testify to it	TBI diagnosis and the diagnostic methods used are outside the statutory scope of chiropractic practice in Nebraska	Held: Exclusion affirmed — TBI diagnosis was outside authorized chiropractic scope under Neb. law
Whether the diagnostic methods McClaren used are authorized for chiropractors	The optical tests, saccadometer, and neuropsych batteries are generally used in medicine and thus permissible for chiropractic experts	§ 38‑805(1)(a) limits chiropractors to diagnostic X‑ray, physical/clinical exams, and routine procedures; McClaren’s methods are not authorized	Held: Exclusion affirmed — methods were not among statutory diagnostic methods and were not shown to be for assessing a patient’s suitability for chiropractic care
Whether additional postgraduate education/board certification can expand a chiropractor’s scope to include TBI diagnosis	McClaren’s >600 hours postgrad training and board certification in chiropractic neurology make him qualified to opine beyond baseline chiropractic scope	Legislative scope controls; additional training cannot enlarge statutorily defined scope absent licensing change	Held: Exclusion affirmed — extra training does not expand statutory scope; only Legislature may do so

Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (framework for assessing scientific validity and reliability of expert testimony)
Schafersman v. Agland Coop, 262 Neb. 215 (2001) (Nebraska application of Daubert standards)
Floyd v. Worobec, 248 Neb. 605 (1995) (licensed chiropractor may testify as expert on matters within chiropractic scope)
Fries v. Goldsby, 163 Neb. 424 (1956) (principle that chiropractors can testify as experts within their field)
Carlson v. Okerstrom, 267 Neb. 397 (2004) (expert qualification is preliminary question for trial court)
State v. Daly, 278 Neb. 903 (2009) (trial court discretion in determining expert qualifications)