Yagodinski v. Sutton, 959 N.W.2d 541

In 2011, Yagodinski was rear-ended by Sutton and later sued for injuries, pursuing only general damages at trial.
Yagodinski’s treating chiropractor, Dr. John McClaren, diagnosed her with "vestibular post‑concussive syndrome" (described as a mild traumatic brain injury) based on optical testing, a saccadometer, and neuropsychological batteries; he also opined she had permanent cervical whiplash injuries.
Sutton moved to exclude McClaren’s TBI opinion; the trial court initially barred the TBI testimony as outside the scope of chiropractic practice and as inadmissible under Daubert/Schafersman standards.
On first appeal the Supreme Court remanded for explicit findings because the record lacked a ruling on the offer of proof; the district court then received additional evidence about McClaren’s credentials (postgraduate chiropractic neurology training and board certification) and expert affidavits for both sides.
On remand the court again excluded McClaren’s TBI opinion, finding (1) his diagnostic methods were not within the statutory scope of chiropractic practice in Nebraska and (2) his methodology was not scientifically reliable; the district court reinstated the jury’s $5,000 verdict; the Supreme Court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a licensed chiropractor may give an expert opinion diagnosing a traumatic brain injury (TBI) caused by the collision	McClaren’s chiropractic neurology training and use of optical/neuropsychological tests qualify him to diagnose TBI	McClaren’s TBI diagnosis and diagnostic methods exceed the statutory chiropractic scope and are unreliable	Excluded: TBI diagnosis was outside statutory chiropractic scope, so testimony properly barred
Whether additional post‑graduate education/board certification expands a chiropractor’s authorized scope to include TBI diagnosis	McClaren’s board certification and extensive training in brain injury authorize expert TBI testimony	Statutory scope is fixed by the Legislature and cannot be expanded by additional training alone	Rejected: additional education does not expand statutory scope; licensure/credentialing control admissible scope
Whether Daubert/Schafersman analysis must be reached if testimony is outside statutory scope	Plaintiff urged that methodology is accepted and reliable under Daubert/Schafersman	Defendant argued exclusion appropriate both under scope and under Daubert/Schafersman	Court did not need to decide Daubert in depth because exclusion on scope grounds was dispositive (and court also found methodology unreliable on remand)

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (framework for assessing scientific expert admissibility)
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 within scope of chiropractic practice)
Fries v. Goldsby, 163 Neb. 424 (1956) (chiropractor competent to testify as expert on matters within chiropractic qualifications)
Rodgers v. Sparks, 228 Neb. 191 (1988) (qualification inquiry framed by whether opinions fall within chiropractic scope)