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YAGODINSKI v. SUTTON

Cite as 309 Neb. 179

Gina Yagodinski, appellant, 

v. Brad Sutton, appellee.

___ N.W.2d ___

Filed May 14, 2021. No. S-20-317.

1. Trial: Expert Witnesses: Appeal and Error. There is no exact standard for fixing the qualifications of an expert witness, and a trial court 

is allowed discretion in determining whether a witness is qualified to 

testify as an expert. Unless the court’s finding is clearly erroneous, such 

a determination will not be disturbed on appeal.

2. ____: ____: ____. An appellate court reviews de novo whether the trial 

court applied the correct legal standards for admitting an expert’s testimony, and it reviews for abuse of discretion how the trial court applied 

the appropriate standards in deciding whether to admit or exclude an 

expert’s testimony.

3. Trial: Expert Witnesses. Whether a witness is qualified as an expert is 

a preliminary question for the trial court.

4. Health Care Providers: Expert Witnesses: Licenses and Permits: 

Juries. A duly licensed and practicing chiropractor is competent to 

testify as an expert witness within the scope of his or her knowledge 

according to his or her qualifications in the field of chiropractics, and 

the weight to be accorded the testimony is for the jury.

5. Health Care Providers: Expert Witnesses: Licenses and Permits. A 

licensed chiropractor will generally be qualified to testify as an expert 

on any matter that is within the scope of chiropractic practice and licensure in Nebraska.

6. Health Care Providers: Public Health and Welfare. The general purpose of the Uniform Credentialing Act is to protect the public health, 

safety, and welfare by credentialing persons who provide health and 

health-related services, as well as developing and enforcing standards 

for such services.

7. Health Care Providers: Statutes. Whether a particular diagnosis, or 

diagnostic method, is within the authorized scope of chiropractic practice is primarily a question of statutory interpretation.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/11/2021 08:11 AM CDT
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8. Statutes: Legislature: Intent. In construing a statute, a court must 

determine and give effect to the purpose and intent of the Legislature 

as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

9. Statutes: Appeal and Error. To give effect to all parts of a statute, an 

appellate court will attempt to reconcile different provisions so they are 

consistent, harmonious, and sensible, and will avoid rejecting as superfluous or meaningless any word, clause, or sentence.

10. Health Care Providers: Legislature: Courts. The Legislature has 

circumscribed the diagnostic and treatment methods available to 

licensed chiropractors, and courts should not, by judicial interpretation, 

expand the practice of chiropractic beyond the scope established by 

the Legislature.

11. Statutes: Words and Phrases. Generally, when a statute does not 

define a term or phrase, courts will give the phrase its ordinary meaning.

12. Health Care Providers. The diagnostic methods described in Neb. 

Rev. Stat. § 38-805(1)(a) (Reissue 2016) are necessarily confined to 

assessing patients for the purpose of determining appropriate chiropractic care.

13. Health Care Providers: Expert Witnesses: Licenses and Permits: 

Legislature: Courts. When an expert is a licensed health professional 

offering testimony about a patient, it is entirely appropriate for a court 

to consider, as a factor affecting qualification, the statutory scope of 

practice established by the Legislature.

14. Health Care Providers. A licensed chiropractor cannot expand the 

scope of chiropractic practice in Nebraska merely through additional 

education, training, and professional affiliation.

15. Health Care Providers: Legislature. The scope of chiropractic practice has been established by the Legislature, and only that body has the 

authority to expand it.

16. Health Care Providers: Expert Witnesses: Licenses and Permits.

When a licensed, credentialed health professional seeks to offer an 

expert opinion regarding a patient’s diagnosis, it is entirely appropriate 

to limit such expert testimony to matters within the scope of the expert’s 

professional licensure and credentialing.

Appeal from the District Court for Sarpy County: George 

A. Thompson, Judge. Affirmed.

James E. Harris and Britany S. Shotkoski, of Harris & 

Associates, P.C., L.L.O., for appellant.
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Cite as 309 Neb. 179

Thomas A. Grennan and Eric J. Sutton, of Gross & Welch, 

P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

The primary question in this appeal is whether a licensed 

chiropractor in Nebraska was qualified to offer expert opinion 

testimony that his patient sustained a traumatic brain injury 

in a motor vehicle collision. The district court excluded such 

opinion testimony on several grounds, including that the opinion was outside the scope of chiropractic practice and licensure 

in Nebraska. We affirm.

I. BACKGROUND

In 2011, Gina Yagodinski’s vehicle was struck from behind 

by a vehicle operated by Brad Sutton. In 2015, Yagodinski 

filed a lawsuit against Sutton in the district court for Douglas 

County. Her operative complaint alleged the collision was 

caused by Sutton’s negligence and resulted in Yagodinski’s 

sustaining “permanent and painful injuries which have been 

diagnosed as persistent/recurrent neck, thoracic and spine pain, 

and headaches.” The complaint sought to recover both special and general damages. Eventually, Yagodinski dropped her 

claim for special damages and proceeded to trial seeking only 

general damages.

During the pendency of this action, Yagodinski was referred 

to Dr. John McClaren, a licensed chiropractor in La Vista, 

Nebraska. McClaren examined Yagodinski and diagnosed her 

with “vestibular post-concussive syndrome,” which he concluded was caused by the 2011 collision. The parties generally 

describe this diagnosis as an opinion that Yagodinski sustained 

a mild traumatic brain injury in the collision.

The defense moved in limine to preclude McClaren 

from offering any opinion testimony regarding his diagnosis of a traumatic brain injury, arguing generally that such 
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testimony was inadmissible under the Nebraska Evidence 

Rules and the standards set forth in Daubert v. Merrell Dow 

Pharmaceuticals, Inc.,

 1 and Schafersman v. Agland Coop 2

(Daubert/Schafersman). At the hearing on the motion in limine, 

both parties offered evidence, which we summarize briefly 

now and discuss in more detail later.

Yagodinski offered evidence that in addition to McClaren’s 

chiropractic education and training, he pursued specific education and training in the diagnosis of traumatic brain injury, 

and that he holds himself out as a “chiropractic neurologist.” The defense offered evidence from a licensed medical 

neurologist that the methods used by McClaren to diagnose 

traumatic brain injury were not generally accepted by medical neurologists.

In a written order, the trial court sustained the motion in 

limine and precluded McClaren from testifying that Yagodinski 

sustained a traumatic brain injury in the collision. Citing to this 

court’s opinions in Floyd v. Worobec 3 and Fries v. Goldsby,

 4

the court generally reasoned that McClaren, as a licensed chiro

practor, was qualified to testify to matters within the scope of 

his chiropractic licensure. But the court found McClaren was 

not qualified to testify about the diagnosis and treatment of 

traumatic brain injuries, reasoning that such injuries were outside the scope of chiropractic care in Nebraska. The court also 

found that McClaren’s diagnosis of traumatic brain injury was 

inadmissible under Daubert/Schafersman.

Yagodinski moved the court to reconsider its ruling and to 

allow McClaren to offer his opinion that Yagodinski sustained 

a traumatic brain injury in the collision. The court overruled 

that request, and the matter proceeded to a jury trial.

1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 

2786, 125 L. Ed. 2d 469 (1993).

2 Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).

3 Floyd v. Worobec, 248 Neb. 605, 537 N.W.2d 512 (1995).

4 Fries v. Goldsby, 163 Neb. 424, 80 N.W.2d 171 (1956).
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1. Trial

At trial, in addition to her own testimony, Yagodinski 

offered the testimony of her parents, a coworker, and her husband. These witnesses testified, summarized, that Yagodinski 

was athletic and active before the collision, but experienced 

pain and discomfort after the collision and was generally 

less active.

Both parties offered expert testimony at trial. Yagodinski 

called McClaren, who testified that Yagodinski was referred 

to him approximately 51⁄2 years after the collision. McClaren 

obtained a history from Yagodinski and reviewed her prior 

treatment records which, according to McClaren, showed that 

she reported neck stiffness and headaches a few hours after the 

collision. McClaren testified those symptoms improved with 

chiropractic physiotherapy, but Yagodinski continued to experience headaches, neck pain, and back pain. Based on his expe

rience, education, and training, McClaren opined to a reasonable degree of chiropractic certainty that Yagodinski sustained 

cervical whiplash injuries as a result of the collision and that 

her residual symptoms were permanent.

At the conclusion of McClaren’s testimony, and outside the 

presence of the jury, Yagodinski’s counsel made an offer of 

proof. The judge left the courtroom during the offer of proof, 

with the parties’ consent. Counsel for Yagodinski made a 

record that, if permitted, McClaren would have testified about 

the diagnostic tests he performed on Yagodinski and would 

have offered his opinion that she sustained a mild traumatic 

brain injury caused by the 2011 collision. Defense counsel 

objected to the offer of proof, and both parties offered exhibits 

to support their respective positions. The trial record contains 

no rulings on the offer of proof.

When trial resumed, the defense offered the deposition testimony of Dr. Joel Cotton, who described himself as a physician and board-certified neurologist practicing in Nebraska. 

Cotton testified that he reviewed Yagodinski’s hospital and 

medical records, her acupuncture and massage records, and 
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her chiropractic records. He also reviewed records from the 

sports club where Yagodinski participated in kickboxing and 

some of her employment records. Based on his review of 

those records and his training, knowledge, and experience, 

Cotton opined to a reasonable degree of medical certainty that 

Yagodinski experienced a “temporary cervical sprain or strain” 

as a result of the collision, but did not suffer any permanent 

injury. In Cotton’s opinion, Yagodinski reached maximum 

medical improvement within about 2 months after the collision, and any treatment she sought after that point was unrelated to the collision.

The jury returned a general verdict in favor of Yagodinski in 

the amount of $5,000. The trial court entered judgment in that 

amount the following day.

2. First Appeal

Yagodinski appealed the judgment, assigning error to the 

trial court’s exclusion of McClaren’s diagnosis regarding mild 

traumatic brain injury. The appellate briefing generally treated 

the offer of proof as though it had been considered and overruled by the trial court, but in an unpublished memorandum 

opinion, we found the record did not support such an assumption. We expressed concern that the judge’s absence from 

the courtroom during the offer of proof prevented a ruling 

on the offer and defeated a primary purpose of the exercise, 

which was to provide the trial court an opportunity to reconsider its preliminary evidentiary ruling in the context of all 

the evidence. 5

5 See, State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013) (after prelim

inary evidentiary ruling, requiring renewal of objection and offer of proof 

at trial provides important procedural safeguards against reversible error); 

State v. Kramer, 238 Neb. 252, 469 N.W.2d 785 (1991) (purpose of 

offer of proof is to bring attention to substance and purpose of proffered 

evidence so both trial court and appellate court can determine whether 

exclusion of evidence was error).
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We also explained that an appellate court reviews for an 

abuse of discretion a trial court’s ruling on whether to admit 

or exclude expert testimony 6 and that we were not able to conduct such a review because we could not tell from the record 

whether a ruling had been made on the offer of proof and, if so, 

the basis for such ruling. We therefore reversed, and remanded 

with instructions that the court make the necessary rulings to 

facilitate appellate review. Specifically, we directed:

Upon remand, the court shall determine whether 

McClaren is qualified as an expert and if so, whether the 

proffered opinions are within the scope of that expertise. 

If so, the district court shall determine, on the existing record, whether the excluded testimony, in whole 

or in part, is scientifically valid and reliable under the 

Daubert/Schafersman analysis. . . . If, after making the 

necessary specific findings, the court concludes that none 

of McClaren’s excluded testimony is admissible, the court 

shall reinstate the judgment upon the jury’s verdict. If the 

court concludes that any or all of the excluded testimony 

is admissible, the court shall order a new trial only on the 

issue of damages.

3. Proceedings on Remand

On remand, the trial court received into evidence the exhibits previously offered in support of, and in opposition to, 

Yagodinski’s offer of proof. Additionally, it received the entire 

bill of exceptions from trial and it took judicial notice of the 

Nebraska statutes and administrative regulations governing 

chiropractic licensure, and the scope of chiropractic practice, in 

Nebraska. As relevant to the issues on appeal, we summarize 

the evidence considered by the trial court on remand.

(a) McClaren’s Deposition and Affidavit

In his discovery deposition, McClaren described himself 

as “a board-certified chiropractic neurologist.” He obtained 

6 See Larsen v. 401 Main St., 302 Neb. 454, 923 N.W.2d 710 (2019).
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this certification in 2005 through the American Chiropractic 

Neurology Board, which required a minimum of 300 hours 

of postgraduate education in neurology and a board examination. To obtain the required education in neurology, McClaren 

attended the Carrick Institute; an affidavit from Dr. Frederick 

Carrick was received as part of Yagodinski’s offer of proof 

and is discussed later. In 2014, McClaren performed clinical 

rounds at the Carrick Brain Center, and in 2015, McClaren 

completed a 375-hour fellowship degree in “Brain Injury and 

Rehabilitation” from the American Board of Brain Injury 

and Rehabilitation.

McClaren testified that to diagnose Yagodinski’s brain injury, 

he performed a series of optical examinations using various 

instruments, including a saccadometer. McClaren described the 

saccadometer as a “headgear with a laser” that “measures the 

amplitude, latency, and position of the eye when it moves.” 

He also performed “static visual acuity test[s],” which he 

described as tests “you would do at the conventional eye doctor,” and he used a tablet computer to administer “a neuro

psychological battery” developed by the Cleveland Clinic to 

diagnose concussion. McClaren represented that all the testing methodologies and devices he used were “formulated for 

medical purposes,” and he described it as “standard testing 

that’s done by medical professionals and allied health professionals.” McClaren testified that his testing showed Yagodinski 

had “issues with the visual motor system compared to the 

vestibular system” and the “eye movements in her dynamic 

visual acuity weren’t appropriate with someone who has perfect neurology in those areas.” Based on the results of his testing of Yagodinski, his training, and his education, McClaren 

diagnosed Yagodinski with “vestibular post-concussive syndrome,” a condition McClaren described as a mild traumatic 

brain injury. McClaren opined to a reasonable degree of chiropractic probability that the condition was caused by the 2011 

collision. McClaren was not asked whether he provided any 

chiropractic treatment to address Yagodinski’s brain injury, 
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nor did he testify that chiropractic treatment could address such 

an injury. McClaren testified that he occasionally refers chiropractic patients to medical neurologists, but he did not consider 

such a referral for Yagodinski.

(b) Affidavit of Carrick

To support McClaren’s qualification as an expert in traumatic brain injuries, Yagodinski also offered the affidavit of 

Carrick, who described himself as a “board-certified chiropractic neurologist and a board-certified fellow in several specialties related to neurology, brain injuries, and rehabilitation in 

both the United States and Europe.” It was Carrick’s opinion 

that “Chiropractic Physicians in the state of Nebraska who are 

board-certified in Neurology are qualified and able to provide 

opinions and treatment to patients who have suffered a traumatic brain injury.”

(c) Affidavit of Lorn Miller

Yagodinski also offered the affidavit of Dr. Lorn Miller, who 

described himself as a “medical doctor and board-certified neurologist.” Miller averred that he is familiar with the academic 

credentials for chiropractic neurology and that he “recognize[d] 

[McClaren’s] expertise and bona fide specialty training in his 

profession as a chiropractic neurologist and his interdiscipli

nary certification, qualifications, training and expertise in traumatic brain injury and rehabilitation.” Miller also offered the 

opinion that McClaren was qualified to render an opinion that 

Yagodinski sustained a concussion and has vestibular post

concussion syndrome.

(d) Deposition and Affidavit of Cotton

The defense opposed Yagodinski’s offer of proof by offering 

the affidavit of Cotton and portions of his deposition testimony 

that had been redacted for use at trial. Cotton testified that 

he observed nothing in Yagodinski’s medical or chiropractic records to suggest she sustained a traumatic brain injury 

in the 2011 collision. Cotton also testified that he reviewed 
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McClaren’s report of the diagnostic methods McClaren used 

to diagnose Yagodinski with a brain injury and that in Cotton’s 

opinion, McClaren’s report made “absolutely no sense.” Cotton 

generally averred that McClaren’s testing and conclusions were 

unreliable, and Cotton specifically averred that the ocular 

tests McClaren used to diagnose Yagodinski’s concussion were 

not generally accepted within the neurological community or 

among medical neurologists.

4. Ruling on Offer of Proof

In a lengthy order, the trial court discussed the offer of proof 

evidence considered on remand and made specific findings 

under the Daubert/Schafersman framework. The court found 

that diagnosing a brain injury is “outside the qualifications 

and expertise of a chiropractor” under the Nebraska statutes 

governing the scope of chiropractic practice. It further found 

that McClaren’s diagnostic methodology, including the use of 

various optical devices, fell outside the scope of chiropractic 

practice. The court acknowledged McClaren’s additional education and training in traumatic brain injuries, but concluded it 

did not enable McClaren to testify as an expert on matters that 

were beyond the scope of chiropractic practice in Nebraska. 

The court also analyzed McClaren’s methodology and reasoning under Daubert/Shafersman and concluded it was neither 

scientifically valid nor reliable.

The trial court therefore overruled the offer of proof and 

confirmed its finding that McClaren’s proffered opinion diagnosing a traumatic brain injury was inadmissible. The court 

reinstated the judgment on the jury’s verdict, and Yagodinski 

again appealed. We moved the case to our docket on our 

own motion.

II. ASSIGNMENTS OF ERROR

Yagodinski assigns multiple errors, which we consolidate 

and restate into one: The trial court erred when it restricted 

the scope of McClaren’s expert testimony to exclude his 
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opinion that Yagodinski sustained a traumatic brain injury in 

the 2011 collision.

III. STANDARD OF REVIEW

[1] There is no exact standard for fixing the qualifications 

of an expert witness, and a trial court is allowed discretion 

in determining whether a witness is qualified to testify as an 

expert. 7 Unless the court’s finding is clearly erroneous, such a 

determination will not be disturbed on appeal. 8

[2] An appellate court reviews de novo whether the trial 

court applied the correct legal standards for admitting an 

expert’s testimony, and it reviews for abuse of discretion how 

the trial court applied the appropriate standards in deciding 

whether to admit or exclude an expert’s testimony. 9

IV. ANALYSIS

Neb. Evid. R. 702 governs the admissibility of expert testimony and provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the 

evidence or to determine a fact in issue, a witness qualified 

as an expert by knowledge, skill, experience, training, or 

education, may testify thereto in the form of an opinion or 

otherwise.” 10 Under rule 702, “a witness can testify concerning 

scientific, technical, or other specialized knowledge only if the 

witness is qualified as an expert.” 11

[3] Whether a witness is qualified as an expert is a preliminary question for the trial court. 12 Here, the trial court 

found that McClaren, a licensed chiropractor in Nebraska, was 

qualified to offer an expert opinion that his patient sustained 

7 State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009). See, also, Carlson v. 

Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004).

8 Daly, supra note 7.

9 Larsen, supra note 6.

10 Neb. Rev. Stat. § 27-702 (Reissue 2016).

11 Carlson, supra note 7, 267 Neb. at 409, 675 N.W.2d at 102.

12 Id.
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a cervical whiplash injury in the collision, but was not qualified to offer an expert opinion that she sustained a traumatic 

brain injury.

In this appeal, Yagodinski’s arguments regarding McClaren’s 

qualifications fall into two general categories. First, she argues 

the statutory scope of chiropractic practice in Nebraska is 

broad enough to include the diagnosis of traumatic brain injury, 

using the diagnostic methods employed by McClaren. Second, 

she argues that McClaren is a “chiropractic neurologist” with 

specialized education and training in the diagnosis of traumatic 

brain injuries, and therefore is qualified to testify as an expert 

on brain injuries. We address these arguments in order.

1. Scope of Chiropractic Practice 

and Diagnostic Methods 

Used by McClaren

[4,5] It is well settled that “a duly licensed and practicing 

chiropractor is competent to testify as an expert witness within 

the scope of his [or her] knowledge according to his [or her] 

qualifications in the field of chiropractics, and the weight of 

his [or her] testimony is a question for the jury.” 13 As such, a 

licensed chiropractor will generally be qualified to testify as 

an expert on any matter that is within the scope of chiropractic 

practice and licensure in Nebraska. 14

As it regards McClaren’s qualification to offer expert testimony that his patient sustained a traumatic brain injury, the 

primary question is whether such a diagnosis falls within the 

scope of chiropractic practice. 15 To answer that question, we 

13 Fries, supra note 4, 163 Neb. at 435, 80 N.W.2d at 178. See, also, Floyd,

supra note 3 (licensed chiropractor qualified to testify to matters within 

scope of such practice); Rodgers v. Sparks, 228 Neb. 191, 421 N.W.2d 785 

(1988) (licensed chiropractor may testify as expert witness within scope of 

qualifications in field of chiropractic).

14 See id.

15 See Rodgers, supra note 13, 228 Neb. at 197, 421 N.W.2d at 789 (framing 

qualification determination as “whether [expert opinions on] causation and 

permanency are within the scope of the field of chiropractic”).
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turn first to the legislative acts which govern the practice of 

chiropractic in Nebraska.

The practice of chiropractic in Nebraska has been statutorily regulated for almost a century. 16 Before the enactment 

of laws providing for chiropractic licensure and regulation, 

professionals practicing chiropractic were considered to be 

engaged in the unauthorized practice of medicine. 17 Currently, 

the Legislature regulates the scope of chiropractic practice 

through the Uniform Credentialing Act 18 and the Chiropractic 

Practice Act. 19 There is considerable variation in the way each 

state defines the scope of chiropractic practice, so opinions 

from other jurisdictions offer only limited guidance when considering the scope of chiropractic in Nebraska. 20

[6] The Legislature has explained the general purpose 

of the Uniform Credentialing Act is to protect the public 

health, safety, and welfare by credentialing persons who provide health and health-related services, as well as developing and enforcing standards for such services. 21 The Uniform 

Credentialing Act governs more than 30 different health-related 

professions, 22 including chiropractors. 23 As a general matter, 

16 See 1927 Neb. Laws, ch. 167 § 76, p. 474.

17 See Harvey v. State, 96 Neb. 786, 148 N.W. 924 (1914) (affirming chiro

practor’s conviction for unauthorized practice of medicine, noting Nebraska 

Legislature had not enacted laws providing for the licensure and regulation 

of chiropractors).

18 See Neb. Rev. Stat. §§ 38-101 to 38-1,145 (Reissue 2016 & Cum. Supp. 

2020).

19 See Neb. Rev. Stat. §§ 38-801 to 38-811 (Reissue 2016 & Cum. Supp. 

2020).

20 See, generally, 78 Am. Jur. Trials 1, § 5 (2001) (observing considerable 

variation among 50 states in statutory scope of allowable chiropractic 

practice; some statutes narrowly restrict chiropractic practice and others 

authorize using range of diagnostic and treatment methods in addition to 

spinal manipulation).

21 See § 38-103.

22 See, generally, § 38-121(1).

23 See §§ 38-101(7) and 38-121(1)(i).
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credentialed health professionals may not practice beyond the 

authorized scope of their profession. 24

In Nebraska, the statutory scope of chiropractic practice 

has changed over the years, 25 and currently, it is defined in 

§ 38-805 of the Chiropractic Practice Act, which provides:

(1) Practice of chiropractic means one or a combination 

of the following, without the use of drugs or surgery:

(a) The diagnosis and analysis of the living human 

body for the purpose of detecting ailments, disorders, and 

disease by the use of diagnostic X-ray, physical and clinical examination, and routine procedures including urine 

analysis; or

(b) The science and art of treating human ailments, 

disorders, and disease by locating and removing any 

interference with the transmission and expression of nerve 

energy in the human body by chiropractic adjustment, 

chiropractic physiotherapy, and the use of exercise, nutrition, dietary guidance, and colonic irrigation.

Additionally, the Chiropractic Practice Act expressly excludes 

“[l]icensed physicians and surgeons” and “licensed osteopathic 

physicians” who are exclusively engaged in the practice of 

their respective professions. 26 Conversely, the Medicine and 

Surgery Practice Act 27 excludes chiropractors from the class of 

persons who engage in the unauthorized practice of medicine, 

so long as the chiropractor is “licensed and practicing under 

the Chiropractic Practice Act.” 28

24 See, e.g., §§ 38-178(6)(b) and 38-179. See, also, 172 Neb. Admin. Code 

ch. 29, § 007.02(C) (2020).

25 Compare § 38-805, with Neb. Rev. Stat. § 71-177 (1943) (defining “practice 

of chiropractic” as “[p]ersons publicly professing to be chiropractors” and 

“[p]ersons who treat human ailments by the adjustment by hand of any 

articulation of the spine”).

26 § 38-806.

27 See Neb. Rev. Stat. §§ 38-2001 to 38-2062 (Reissue 2016 & Cum. Supp. 

2020).

28 § 38-2025(13).
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We understand Yagodinski to argue that McClaren’s diagnosis of a traumatic brain injury falls within the scope of 

chiropractic practice because § 38-805 contains no language 

expressly restricting the practice of chiropractic to only certain 

areas of the body, and it does not expressly restrict the types 

of ailments, disorders, and diseases that chiropractors can diagnose. Yagodinski also appears to argue that § 38-805 does not 

purport to restrict the methods or equipment a chiropractor can 

use to reach a diagnosis. In other words, Yagodinski generally 

argues that chiropractors are authorized to diagnose human 

disease without limitation. The trial court rejected such a broad 

interpretation of § 38-805, and we do too.

[7-9] Whether a particular diagnosis, or diagnostic method, 

is within the authorized scope of chiropractic practice is 

primarily a question of statutory interpretation. 29 In construing a statute, a court must determine and give effect to the 

purpose and intent of the Legislature as ascertained from the 

entire language of the statute considered in its plain, ordinary, 

and popular sense. 30 To give effect to all parts of a statute, 

an appellate court will attempt to reconcile different provisions so they are consistent, harmonious, and sensible, and 

will avoid rejecting as superfluous or meaningless any word, 

clause, or sentence. 31

Yagodinski is correct that § 38-805 does not expressly limit 

the areas of the body or the types of ailments that a licensed 

chiropractor can diagnose and treat. Nor does it expressly prohibit the use of any particular method or equipment when making a diagnosis. But the plain language of § 38-805 imposes 

29 See Annot., 16 A.L.R.4th 58, § 2[b] (1982) (whether particular practice or 

procedure is within authorized scope of chiropractic is primarily question 

of statutory interpretation and normal rules of construction apply).

30 Anderson v. A & R Ag Spraying & Trucking, 306 Neb. 484, 946 N.W.2d 

435 (2020).

31 See E.M. v. Nebraska Dept. of Health & Human Servs., 306 Neb. 1, 944 

N.W.2d 252 (2020).
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such limitations indirectly by restricting the diagnostic and 

treatment methods that licensed chiropractors can use.

Subsection (1)(a) of § 38-805 restricts the diagnostic methods a chiropractor can use to detect ailments, disorders, and 

disease, and subsection (1)(b) restricts the treatment methods 

a chiropractor can use. By restricting both the diagnostic and 

treatment methods available to licensed chiropractors, the 

Legislature has necessarily restricted the universe of ailments, 

disorders, and diseases such professionals can diagnose and 

treat within the scope of chiropractic practice. 32 Stated differently, when defining the scope of chiropractic practice 

under § 38-805(1)(a), the Legislature has authorized a licensed 

chiropractor to diagnose only those human ailments, disorders, 

or diseases that can be detected “by the use of diagnostic 

X-ray, physical and clinical examination, and routine procedures including urine analysis.” And under § 38-805(1)(b), 

the Legislature has authorized a licensed chiropractor to treat 

only those human ailments, disorders, and diseases which 

can be addressed by “locating and removing any interference with the transmission and expression of nerve energy 

in the human body by chiropractic adjustment, chiropractic physiotherapy, and the use of exercise, nutrition, dietary 

guidance, and colonic irrigation.” By way of comparison, the 

Legislature has placed no statutory restrictions on the diagnostic methods or the treatment methods physicians can use, and 

it has defined the practice of medicine and surgery broadly to 

32 Compare limited diagnostic and treatment methods under § 38-805(1)(a), 

with § 38-2024(2), (3), and (5) (broadly defining practice of medicine 

and surgery to include persons “who prescribe and furnish medicine for 

some illness, disease, ailment, injury, pain, deformity, or any physical 

or mental condition, or treat the same by surgery”; persons “qualified in 

the diagnosis or treatment of diseases, ailments, pain, deformity, or any 

physical or mental condition, or injuries of human beings”; and persons 

who “maintain an office for the examination or treatment of persons 

afflicted with ailments, diseases, injuries, pain, deformity, or any physical 

or mental condition of human beings”).
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include “the diagnosis or treatment of diseases, ailments, pain, 

deformity, or any physical or mental condition, or injuries of 

human beings.” 33

[10] We must reject Yagodinski’s invitation to interpret 

§ 38-805 so broadly that it permits licensed chiropractors to 

diagnose all human conditions without limitation. Such a construction would ignore the statutory restrictions placed on the 

diagnostic methods a chiropractor can use and would expand 

the authorized diagnostic methods to be commensurate with 

licensed physicians and surgeons. The Legislature has circumscribed the diagnostic and treatment methods available to 

licensed chiropractors, and courts should not, by judicial interpretation, expand the practice of chiropractic beyond the scope 

established by the Legislature. 34

The plain language of § 38-805(1)(a) authorizes chiropractors to use only certain diagnostic methods: “diagnostic 

X-ray, physical and clinical examination, and routine procedures including urine analysis.” The trial court determined the 

methods used by McClaren to diagnose Yagodinski’s traumatic 

brain injury fell outside the statutory scope of chiropractic 

practice. As we explain, on this record, we see no error in 

that finding.

[11] We have been directed to no statute purporting to 

more specifically define the permissible diagnostic methods 

described in § 38-805(1)(a). Generally speaking, when a statute does not define a term or phrase, courts will give the 

phrase its ordinary meaning, 35 and we do so here. But we 

33 § 38-2024(3).

34 See State, ex rel. Iowa Dept. of Health v. Van Wyk, 320 N.W.2d 599 

(Iowa 1982). See, also, Atty. Gen., on Behalf of People v. Beno, 422 

Mich. 293, 312, 373 N.W.2d 544, 552 (1985) (observing “public health 

and safety is best protected by more strictly construing the jurisdiction of 

the more specialized and limited health profession in favor of the more 

comprehensively trained and licensed profession”).

35 See Hall v. United States, 566 U.S. 506, 132 S. Ct. 1882, 182 L. Ed. 2d 

840 (2012).
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also find instructive the administrative regulations adopted by 

the Department of Health and Human Services which more 

directly address both the diagnostic methods chiropractors can 

use and the purpose of such methodologies. 36

[12] Consistent with the diagnostic methods described 

generally in § 38-805, the regulations of the Department of 

Health and Human Services provide that a chiropractor’s diagnostic methods “may include, but are not limited to, urine 

and blood analysis and diagnostic imaging.” 37 To the extent 

§ 38-805(1)(a) also authorizes chiropractors to use “physical 

and clinical examination” as a diagnostic method, the regulations explain that the purpose of such clinical evaluations is 

to “assess[] the patient’s current health status or identify if the 

patient is a proper subject for chiropractic care.” 38 As such, 

the diagnostic method of “physical and clinical examination” 

described in § 38-805(1)(a) is necessarily confined to assessing 

patients for the purpose of determining appropriate chiropractic 

care. 39 Were the scope of chiropractic practice not so confined, 

licensed chiropractors would arguably be subject to malpractice liability anytime they failed to diagnose a patient’s medical condition or injury, regardless of whether such condition or 

injury can be treated with chiropractic care. 40

36 See 172 Neb. Admin. Code ch. 29, § 008 (2020).

37 Id.

38 Id. (emphasis supplied).

39 See, id.; § 38-805(1)(a).

40 See, e.g., Goldstein v. Janusz Chiropractic Clinics, S.C., 218 Wis. 2d 

683, 582 N.W.2d 78 (Wis. App. 1998) (explaining chiropractor not sub

ject to malpractice for failure to diagnose abnormal lung mass because 

chiropractors are confined to their limited scope of chiropractic practice). 

See, also, Braford v. O’Connor Chiropractic Clinic, 243 Mich. App. 

524, 624 N.W.2d 245 (2000) (observing scope of chiropractic care, and 

chiropractor’s standard of care, are two sides of same coin; the former 

identifies what chiropractors are permitted to do, and the latter establishes 

what chiropractors must do).
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The conclusion that the statutorily authorized diagnostic 

methods should not be used to expand the scope of chiropractic 

is further supported by the statutory directive in § 38-805(2):

The use of X-rays beyond the axial skeleton as described 

in [§ 38-805(1)(a)] shall be solely for diagnostic purposes and shall not expand the practice of chiropractic to 

include the treatment of human ailments, disorders, and 

disease not permitted when the use of X-rays was limited 

to the axial skeleton.

Here, the record contains no evidence that when diagnosing Yagodinski with a traumatic brain injury, McClaren used 

any of the diagnostic methods described in and authorized by 

§ 38-805(1)(a). Instead, Yagodinski describes that the diagnostic methods used by McClaren included “certain optical exam

inations,” “the use of a saccadometer,” “a neuropsychological 

battery, a dynamic visual test[,] and other digital tests utilized 

in concussion baseline and diagnosis.” 41 She contends that all 

the diagnostic testing methods used by McClaren are generally accepted and used in the medical community to diagnose 

brain injuries.

We express no opinion on whether these testing methods 

are generally accepted and used in the medical community 

to diagnose brain injuries because that issue is not before 

us. The question we must answer is whether licensed chiropractors are authorized to use such methods in diagnosing patients. We see nothing in the record supporting such 

a conclusion. Obviously, optical tests, saccadometers, and 

neuropsychological batteries are not among the diagnostic 

methods authorized in § 38-805. And we see nothing in the 

record that would support the conclusion that the optical tests 

and neuropsychological batteries used by McClaren to reach 

his diagnosis were administered for the purpose of assessing whether Yagodinski was a proper subject for chiropractic 

41 Brief for appellant at 32.
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care. 42 Absent such evidence, we see no clear error in the trial 

court’s finding that the diagnostic methods used by McClaren 

to reach his diagnosis of traumatic brain injury fell outside 

the scope of chiropractic practice. 43

[13] In sum, when an expert is a licensed health professional 

offering testimony about a patient, it is entirely appropriate for 

a court to consider, as a factor affecting qualification, the statutory scope of practice established by the Legislature. 44 The district court here applied the correct legal standard to determine 

whether McClaren was qualified to offer an expert opinion on 

traumatic brain injury, and it did not abuse its discretion in 

excluding the proffered diagnosis on the basis that McClaren’s 

diagnostic methods fell outside the scope of chiropractic practice in Nebraska.

2. Additional Education and Training 

Cannot Expand Scope of 

Chiropractic Practice

In arguing that the district court should have found McClaren 

was qualified to testify that Yagodinski suffered a traumatic 

brain injury, Yagodinski relies heavily on the facts that, in 

addition to the standard chiropractic education and licensure, McClaren has over 600 hours of education and training 

focused on traumatic brain injury and holds himself out as 

42 See 172 Neb. Admin. Code ch. 29 § 008.

43 See State, ex rel. Iowa Dept. of Health, supra note 34, 320 N.W.2d at 601 

(affirming that methods used by chiropractor fell “outside the ambit of 

those chiropractic functions contemplated or allowed by statute”).

44 See, Floyd, supra note 3 (finding no abuse of discretion in excluding 

expert testimony from witness who had pre-med education, graduated from 

chiropractic college, and had hundreds of hours of additional education in 

“applied kinesiology,” when evidence did not show witness was actually 

licensed to practice chiropractic); Rodgers, supra note 13, 228 Neb. at 

197, 421 N.W.2d at 789 (framing expert qualification question as whether 

proffered opinion of licensed chiropractor was “within the scope of the 

field of chiropractic”).
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a board-certified “chiropractic neurologist.” Yagodinski relies 

on the general principle that expert witnesses “‘will be considered qualified if, and only if, they possess special skill or 

knowledge respecting the subject matter involved so superior 

to that of persons in general as to make the expert’s formation 

of a judgment a fact of probative value.’” 45

Yagodinski concedes that McClaren is not licensed to practice medicine, but she argues that his “chiropractic education, 

training and practice in orthopaedics and neurology utilize the 

same medical texts and literature to diagnose and analyze the 

human body as utilized in medical schools.” 46 Additionally, 

she argues that McClaren’s “graduate and post-graduate educational curriculum consisted of medical texts and literature 

authored by medical doctors” 47 and that in reaching his diagnosis of mild traumatic brain injury, he applied diagnostic 

methods used by medical doctors and relied on peer-reviewed 

“medical literature from renowned institutions such as Harvard 

Medical School.” 48 Yagodinski thus concludes that “McClaren 

possesses special skills and knowledge so superior to persons 

in general [that he is] unequivocally qualified to testify as an 

expert in chiropractic neurology.” 49

We have been directed to nothing in the applicable statutes 

or regulations that defines the practice of “chiropractic neurology” or that recognizes such a subspecialty in Nebraska. 

But regardless, there is a more fundamental problem with 

Yagodinski’s argument: It rests on the faulty assumption that 

the scope of chiropractic practice in Nebraska is something 

a chiropractor can expand through additional education and 

45 Carlson, supra note 7, 267 Neb. at 409, 675 N.W.2d at 102, quoting Ashby 

v. First Data Resources, 242 Neb. 529, 497 N.W.2d 330 (1993).

46 Brief for appellant at 34.

47 Id. at 16.

48 Id. at 32.

49 Id. at 39.
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training. But no amount of additional education will qualify a 

licensed chiropractor to offer expert testimony about a patient 

that is outside the scope of chiropractic practice in Nebraska, 

absent additional licensure and credentialing.

[14,15] This opinion should not be understood as expressing 

skepticism or criticism of McClaren’s education, training, or 

specialized knowledge as it relates to neurology or traumatic 

brain injury. But we must soundly reject the suggestion that 

a licensed chiropractor can expand the scope of chiropractic 

practice in Nebraska merely through additional education, 

training, and professional affiliation. The scope of chiropractic 

practice has been established by the Legislature, and only that 

body has the authority to expand it. 50

[16] If licensed chiropractors, or other credentialed health 

professionals, think it is appropriate to request an expansion of 

the scope of practice under Nebraska law, there is a statutory 

process for doing so. 51 But where, as here, a licensed, credentialed health professional seeks to offer an expert opinion 

regarding a patient’s diagnosis, it is entirely appropriate to 

limit such expert testimony to matters within the scope of the 

expert’s professional licensure and credentialing.

The trial court did not err in finding that McClaren’s additional education did not qualify him to testify as an expert on a 

matter outside the scope of chiropractic practice. Nor was there 

any abuse of discretion in excluding McClaren’s proffered 

opinion on the basis it was outside the scope of chiropractic 

practice in Nebraska.

Lastly, because we find McClaren’s testimony regarding 

the diagnosis of traumatic brain injury was properly excluded 

50 See Harvey, supra note 17, 96 Neb. at 789, 148 N.W. at 926 (recognizing 

Legislature has power to amend laws regulating practice of medicine if 

those laws are considered “harsh, unjust or impolitic” to professionals 

practicing chiropractic).

51 See, e.g., Neb. Rev. Stat. §§ 71-6221(3) and 71-6223 (Reissue 2018).
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on grounds it fell outside the scope of chiropractic practice 

in Nebraska, we do not address the district court’s analysis 

under the Daubert/Schafersman framework. 52

V. CONCLUSION

For the foregoing reasons, the order of the district court 

is affirmed.

Affirmed.

52 See Doty v. West Gate Bank, 292 Neb. 787, 874 N.W.2d 839 (2016) 

(appellate court not obligated to engage in analysis that is not necessary to 

adjudicate case and controversy before it).