Yagodinski v. Sutton, 309 Neb. 179

Background

In 2011 Gina Yagodinski was rear-ended by Brad Sutton; she later sued (filed 2015) claiming persistent neck/head pain and sought general damages.
Yagodinski’s treating chiropractor, Dr. John McClaren, 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; McClaren is board‑certified in chiropractic neurology and had extensive post‑graduate TBI training.
Sutton moved to exclude McClaren’s TBI opinion under Nebraska evidence rules and Daubert/Schafersman; a defense neurologist (Dr. Cotton) disputed both the diagnosis and the reliability/acceptance of McClaren’s methods.
At the first trial the court excluded the TBI opinion; a jury nonetheless awarded $5,000. On appeal the Nebraska Supreme Court remanded because the record lacked explicit rulings on the offer of proof and asked the trial court to make specific findings on qualification and Daubert issues.
On remand the trial court (after receiving evidence and statutory/regulatory materials) again excluded McClaren’s TBI opinion, concluding his diagnostic methods fell outside the statutory scope of chiropractic practice in Nebraska and that additional chiropractic training did not expand that scope.
The Nebraska Supreme Court affirmed: a licensed chiropractor may testify only within the statutory scope of chiropractic practice; additional training/certification cannot alone expand that scope, so McClaren was not qualified to give the TBI diagnosis.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a licensed chiropractor may offer an expert opinion that a patient suffered a traumatic brain injury from the collision	McClaren’s chiropractic neurology certification and >600 hours of post‑grad TBI training plus use of optical/saccadometer/neuropsych tests qualify him to opine on TBI	The diagnosis and the testing methods are outside the diagnostic methods authorized for chiropractors in Neb. Rev. Stat. § 38‑805 and are scientifically unreliable	Court held McClaren not qualified to opine on TBI because his diagnostic methods fell outside statutory scope of chiropractic practice; exclusion affirmed
Whether a chiropractor’s additional education/board certification can expand the statutory scope of chiropractic practice	Additional education and board certification in chiropractic neurology make McClaren competent to testify about TBI	Scope of practice is defined by the Legislature and cannot be expanded by a practitioner’s extra training without statutory or licensing change	Court held additional education/certification does not expand statutory scope; only Legislature may change scope
Whether court needed to address Daubert/Schafersman reliability after excluding on scope grounds	McClaren argued admissibility under Rule 702 and Daubert should be weighed in his favor	Defense urged unreliability and lack of general acceptance; trial court evaluated Daubert on remand	Because exclusion on scope was dispositive, appellate court affirmed without resolving Daubert (trial court had also found methods unreliable)

Key Cases Cited

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (U.S. 1993) (framework for assessing scientific expert admissibility)
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 within scope of chiropractic practice)
Fries v. Goldsby, 163 Neb. 424 (Neb. 1956) (same principle on chiropractor expert testimony)
Rodgers v. Sparks, 228 Neb. 191 (Neb. 1988) (qualification inquiry framed as whether opinion falls within chiropractic scope)
Carlson v. Okerstrom, 267 Neb. 397 (Neb. 2004) (preliminary question of expert qualification belongs to trial court)