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Douglas L. Hemsley, Special Administrator of the

Estate of Paul H. Hemsley, deceased, appellant, 

v. Thomas J. Langdon, M.D., et al., appellees.

___ N.W.2d ___

Filed March 30, 2018. No. S-16-1123.

1. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews 

the record de novo to determine whether a trial court has abdicated its 

gatekeeping function under Schafersman v. Agland Coop, 262 Neb. 215, 

631 N.W.2d 862 (2001).

2. ____: ____: ____. When the trial court has not abdicated its gatekeeping 

function under Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 

862 (2001), an appellate court reviews the trial court’s decision to admit 

or exclude the evidence for an abuse of discretion.

3. Motions for New Trial: Appeal and Error. An appellate court reviews 

a denial of a motion for new trial or, in the alternative, to alter or amend 

the judgment, for an abuse of discretion.

4. Judges: Words and Phrases. A judicial abuse of discretion exists when 

the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

5. Expert Witnesses: Appeal and Error. The standard for reviewing the 

admissibility of expert testimony is abuse of discretion.

6. Judgments: Verdicts. On a motion for judgment notwithstanding the 

verdict, the moving party is deemed to have admitted as true all the relevant evidence admitted that is favorable to the party against whom the 

motion is directed, and, further, the party against whom the motion is 

directed is entitled to the benefit of all proper inferences deducible from 

the relevant evidence.

7. ____: ____. To sustain a motion for judgment notwithstanding the 

verdict, the court resolves the controversy as a matter of law and may 

do so only when the facts are such that reasonable minds can draw but 

one conclusion.

Nebraska Supreme Court Online Library

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

04/13/2018 01:13 AM CDT
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8. Trial: Pretrial Procedure: Evidence: Appeal and Error. When a 

motion in limine to exclude evidence is overruled, the movant must 

object when the particular evidence which was sought to be excluded by 

the motion is offered during trial to preserve error for appeal.

9. Malpractice: Expert Witnesses: Proof. As a general matter, expert 

testimony is required to identify the applicable standard of care.

10. Courts: Expert Witnesses. Under the Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 

(1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 

862 (2001), framework, the trial court acts as a gatekeeper to ensure the 

evidentiary relevance and reliability of an expert’s opinion. This entails 

a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology 

properly can be applied to the facts in issue.

11. Expert Witnesses. The standards of Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 

(1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 

862 (2001), require proof of the scientific validity of principles and 

methodology utilized by an expert in arriving at an opinion in order to 

establish the evidentiary relevance and reliability of that opinion.

12. Trial: Expert Witnesses: Intent. The purpose of the gatekeeping 

function is to ensure that the courtroom door remains closed to “junk 

science” that might unduly influence the jury, while admitting reliable 

expert testimony that will assist the trier of fact.

13. Trial: Expert Witnesses. In evaluating the validity of scientific testimony, a trial court considers a number of factors. These include 

(1) whether the theory or technique can be, and has been, tested; (2) 

whether the theory or technique has been subjected to peer review and 

publication; (3) the known or potential rate of error, and the existence 

and maintenance of standards controlling the technique’s operation; and 

(4) the “general acceptance” of the theory or technique.

14. Trial: Rules of Evidence: Expert Witnesses. In making the preliminary 

assessment of validity and applicability regarding the admissibility of 

expert opinion evidence, the trial judge has the discretion both to avoid 

unnecessary Neb. Rev. Stat. § 27-104 (Reissue 2016) hearings, where 

the reliability of an expert’s methods is stipulated to or properly taken 

for granted, and to require appropriate proceedings in the less usual or 

more complex cases, where cause for questioning the expert’s reliability arises.

15. Trial: Expert Witnesses: Records: Appeal and Error. A trial court 

adequately demonstrates that it has performed its gatekeeping duty when 

the record shows (1) the court’s conclusion whether the expert’s opinion 
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is admissible and (2) the reasoning the court used to reach that conclusion, specifically noting the factors bearing on reliability that the court 

relied on in reaching its determination.

16. Motions for New Trial: Appeal and Error. A motion for new trial is to 

be granted only when error prejudicial to the rights of the unsuccessful 

party has occurred.

Appeal from the District Court for Douglas County: James T. 

Gleason, Judge. Affirmed.

Greg Garland, of Greg Garland Law, Kathy Pate Knickrehm, 

Tara DeCamp, of DeCamp Law, P.C., L.L.O., and Todd E. 

Frazier, of Frazier Law Offices, P.C., for appellant.

David A. Blagg, of Cassem, Tierney, Adams, Gotch & 

Douglas, and David D. Ernst, of Pansing, Hogan, Ernst & 

Bachman, L.L.P., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and 

Funke, JJ.

Per Curiam.

I. INTRODUCTION

The special administrator of the estate of Paul H. Hemsley, 

deceased (the Estate), brought a medical negligence action 

against Thomas J. Langdon, M.D.; John T. Batter, M.D.; and 

Omaha Thoracic and Cardiovascular Surgery, P.C. (collectively 

the doctors), claiming they were negligent in the rendering of 

medical care and treatment to Hemsley. Prior to trial, the court 

overruled the Estate’s motion to exclude and motion in limine 

regarding the testimony of the doctors’ expert witnesses. At a 

jury trial, the district court admitted, over the Estate’s objections, testimony by several expert witnesses that Langdon and 

Batter met the standard of care. The jury found for the doctors. 

The Estate appeals. We affirm.

II. BACKGROUND

On September 22, 2011, Langdon performed a coronary 

artery bypass on Hemsley, a 67-year-old male. During the 
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procedure, Langdon placed a chest tube into Hemsley’s anterior mediastinum to monitor any postoperative internal bleeding and to drain blood and serum from under the breastbone. 

Langdon concluded the procedure, and Hemsley remained at 

the hospital to recover.

On September 25, 2011, a nurse notified Batter, the physician on duty, that fecal material was “oozing” from Hemsley’s 

chest incision and that he was feverish. Hemsley was transferred to the intensive care unit with a temperature of 104.9 

degrees. Batter called in another surgeon and “the heart team” 

to operate on Hemsley.

During the second operation, it became apparent that 

Hemsley had sustained a transverse colon injury. The physicians repaired the colon and irrigated the abdomen to remove 

the stool present. Batter saw stool in the abdomen, but “not a 

lot.” Batter and the team “observed that there was no evidence 

that any stool had gotten up from where the hole [in the colon] 

was underneath the rib cage or into any tract that was there.” 

As a result, Batter decided not to open Hemsley’s mediastinum 

to irrigate that area for possible stool.

On September 30, 2011, Hemsley was transferred out of the 

intensive care unit. The next day, he became restless, confused, 

hypotensive, hypoxemic, and unresponsive and later died as a 

result of acute respiratory failure due to or as a consequence 

of peritonitis and of sepsis due to or as a consequence of coronary artery disease.

On September 19, 2013, the Estate filed a complaint against 

the doctors. In its complaint, the Estate asserted a medical malpractice claim under the Nebraska Hospital-Medical 

Liability Act, Neb. Rev. Stat. §§ 44-2801 to 44-2855 (Reissue 

2010). The Estate argued that due to Langdon’s and Batter’s 

professional negligence, the Estate was entitled to predeath 

damages, wrongful death damages, and funeral expenses.

The Estate subsequently filed a motion in limine and a 

motion to exclude the testimony of the doctors’ expert witnesses. At the pretrial hearing, the Estate argued that “the 
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Court has . . . no information before it on what methodologies [the doctors’ expert witnesses] used nor how they 

applied them nor how did they arrive at a logical conclusion.” 

The Estate further argued that the expert witnesses testified 

“about education, training, and experience,” but that under 

federal and state case law (Daubert/Schafersman),1 “[t]hey 

still must disclose the methodologies and . . . the reasoning 

that they used.”

The district court filed an order reserving ruling on the 

Estate’s motion in limine and overruling the Estate’s motion 

to exclude testimony, stating that the expert opinions were not 

of the kind that would be subject to a Daubert/Schafersman

test. The court eventually overruled the Estate’s motion in 

limine regarding the doctors’ methodologies, which was essentially a reassertion of the arguments presented in the motion 

to exclude.

A jury trial was held. At trial, the Estate called as a witness 

a cardiac surgeon who testified that he found a breach of the 

standard of care by Langdon. The surgeon stated that “at a 99 

percent certainty level, the injury was made by the clamp when 

it was passed into the chest.” He testified that the malpractice 

by Langdon was “the inciting event that led to [Hemsley’s] 

death.” At the conclusion of its case in chief, the Estate 

renewed its pretrial Schafersman motions.

At trial, the defense offered the testimony of Langdon, 

Batter, and another cardiothoracic surgeon on the standard of 

care. The Estate objected and renewed its Schafersman motions 

when each witness was questioned on the standard of care. The 

court overruled the motions.

Langdon, the cardiothoracic surgeon who performed the 

initial surgery, testified that he met the applicable standard of 

care and did not pierce Hemsley’s colon with the clamp during 

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

Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 

Neb. 215, 631 N.W.2d 862 (2001).
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the surgery. Langdon contended there were three possibilities 

as to how Hemsley’s transverse colon was injured: First, the 

“transverse colon wall was weakened” from a previous surgery 

and the “clamp skinned it or nicked it . . . or just the outside 

of it, enough to give it a weakness.” Second, when Langdon 

opened Hemsley’s chest, “there was enough force on that if the 

colon was scarred to the back of the abdominal wall . . . the 

serosa of the colon . . . may have partially torn . . . and weakened it.” Third, “the tube was immediately adjacent to [the 

colon] and putting pressure on that part of the colon,” which 

weakened the lining of the colon.

Batter, the cardiothoracic surgeon who performed the second 

surgery, to irrigate out the contamination, also testified that 

he met the standard of care. Finally, the other cardiothoracic 

surgeon testified as an expert witness that Langdon and Batter 

“very clearly met the standard of care in this case.”

A jury found in favor of the doctors. The Estate’s posttrial motions for new trial, for judgment notwithstanding the 

verdict, to strike the opinions of defense’s expert witnesses, 

and to alter or amend the judgment were overruled. The 

Estate appeals.

III. ASSIGNMENTS OF ERROR

The Estate assigns that the district court erred in (1) failing 

to properly perform its gatekeeping function under Daubert/

Schafersman by overruling the Estate’s motion in limine and 

motion to exclude the expert testimony regarding medical 

opinions and methodologies used and applied by the doctors’ 

experts and (2) overruling the Estate’s posttrial motions, which 

were based on the improper admission of the doctors’ expert 

testimony that had been subject to the Estate’s motion in 

limine, motion to exclude, and objection at trial based on the 

Daubert/Schafersman requirements.

IV. STANDARD OF REVIEW

[1,2] An appellate court reviews the record de novo to 

determine whether a trial court has abdicated its Schafersman
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gatekeeping function.2 When the trial court has not abdicated its Schafersman gatekeeping function, an appellate court 

reviews the trial court’s decision to admit or exclude the evidence for an abuse of discretion.3

One issue on appeal asks whether standard of review expert 

testimony is subject to Daubert/Schafersman. We review that 

question de novo. If we conclude that it is, then we review the 

facts for an abuse of discretion.

[3,4] An appellate court reviews a denial of a motion for 

new trial or, in the alternative, to alter or amend the judgment, for an abuse of discretion.4

 A judicial abuse of discretion exists when the reasons or rulings of a trial judge are 

clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for 

disposition.5

[5] The standard for reviewing the admissibility of expert 

testimony is abuse of discretion.6

[6,7] On a motion for judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all 

the relevant evidence admitted that is favorable to the party 

against whom the motion is directed, and, further, the party 

against whom the motion is directed is entitled to the benefit 

of all proper inferences deducible from the relevant evidence.7

To sustain a motion for judgment notwithstanding the verdict, 

the court resolves the controversy as a matter of law and may 

do so only when the facts are such that reasonable minds can 

draw but one conclusion.8

2 Zimmerman v. Powell, 268 Neb. 422, 684 N.W.2d 1 (2004); Schafersman 

v. Agland Coop, supra note 1.

3 Zimmerman v. Powell, supra note 2.

4 InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).

5 Balames v. Ginn, 290 Neb. 682, 861 N.W.2d 684 (2015).

6 State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).

7 Frank v. Lockwood, 275 Neb. 735, 749 N.W.2d 443 (2008).

8 Id.
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V. ANALYSIS

1. Motion in Limine

[8] We note that the Estate’s first assignment of error is 

stated in terms of a motion in limine and motion to exclude 

evidence. When a motion in limine to exclude evidence is 

overruled, the movant must object when the particular evidence 

which was sought to be excluded by the motion is offered during trial to preserve error for appeal.9

 We find that the Estate’s 

error was adequately preserved at trial.

2. Daubert/Schafersman Analysis

and Standard of Care

The Estate argues that the district court erred in concluding that the expert testimony regarding the standard of care 

did not require a Daubert/Schafersman analysis. The doctors argue that the trial court appropriately overruled the 

Daubert/Schafersman objections in regard to the challenged 

testimony.

(a) Standard of Care in Medical 

Malpractice Cases

To establish a prima facie case of medical malpractice, a 

plaintiff must show (1) the applicable standard of care, (2) 

that the defendant(s) deviated from that standard of care, and 

(3) that this deviation was the proximate cause of the plaintiff’s harm.10

The applicable standard of care, in cases such as this arising 

under the Nebraska Hospital-Medical Liability Act,11 has been 

established by the Legislature:

Malpractice or professional negligence shall mean that, 

in rendering professional services, a health care provider 

has failed to use the ordinary and reasonable care, skill, 

9 State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).

10 Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 (2008).

11 §§ 44-2801 to 44-2855.
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and knowledge ordinarily possessed and used under like 

circumstances by members of his profession engaged in a 

similar practice in his or in similar localities. In determining what constitutes reasonable and ordinary care, skill, 

and diligence on the part of a health care provider in a 

particular community, the test shall be that which health 

care providers, in the same community or in similar communities engaged in the same or similar lines of work, 

would ordinarily exercise and devote to the benefit of 

their patients under like circumstances.12

The standard under § 44-2810 includes a locality focus,13 but 

otherwise is consistent with the general common-law rule that 

in a medical malpractice case, the standard of care is found in 

the customary practices prevailing among reasonable and prudent physicians.14

To establish the customary standard of care in a particular 

case, expert testimony by a qualified medical professional is 

normally required.15 Often, such testimony is premised on the 

expert’s personal knowledge of, and familiarity with, the customary practice among medical professionals in the same or 

similar locality under like circumstances.

(b) Daubert/Schafersman Framework

[9] Neb. Rev. Stat. § 27-702 (Reissue 2016), governs the 

admissibility of expert testimony and provides that the witness 

must be qualified as an expert: “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 

12 § 44-2810 (emphasis supplied).

13 See Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589 

(2012).

14 Murray v. UNMC Physicians, 282 Neb. 260, 806 N.W.2d 118 (2011).

15 See, e.g., Simon v. Drake, 285 Neb. 784, 829 N.W.2d 686 (2013); Thone v. 

Regional West Med. Ctr., supra note 10.
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education, may testify thereto in the form of an opinion or 

otherwise.” As a general matter, expert testimony is required to 

identify the applicable standard of care.16

[10-12] In Schafersman v. Agland Coop,

17 we adopted 

the framework set forth in Daubert v. Merrell Dow 

Pharmaceuticals, Inc.,

18 and its progeny, Kumho Tire Co. v. 

Carmichael 19 and General Electric Co. v. Joiner.

20 Under the 

Daubert/Schafersman framework, the trial court acts as a 

gatekeeper to ensure the evidentiary relevance and reliability 

of an expert’s opinion.21 This entails a preliminary assessment whether the reasoning or methodology underlying the 

testimony is valid and whether that reasoning or methodology 

properly can be applied to the facts in issue.22 The Daubert/

Schafersman standards require proof of the scientific validity of principles and methodology utilized by an expert in 

arriving at an opinion in order to establish the evidentiary 

relevance and reliability of that opinion.23 The purpose of this 

gatekeeping function is “‘to ensure that the courtroom door 

remains closed to “junk science” that might unduly influence 

the jury, while admitting reliable expert testimony that will 

assist the trier of fact.’”24

[13] The Court in Daubert also set out a list of considerations that a trial court may use to evaluate the validity of 

16 Thone v. Regional West Med. Ctr., supra note 10. See Simon v. Drake, 

supra note 15.

17 Schafersman v. Agland Coop, supra note 1.

18 Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 1.

19 Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 

2d 238 (1999).

20 General Electric Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512, 139 L. Ed. 

2d 508 (1997).

21 Id.

22 Id.

23 Schafersman v. Agland Coop, supra note 1.

24 State v. Herrera, 289 Neb. 575, 588, 856 N.W.2d 310, 324 (2014).
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scientific testimony. These include (1) whether the theory or 

technique can be, and has been, tested; (2) whether the theory 

or technique has been subjected to peer review and publication; (3) the known or potential rate of error, and the existence and maintenance of standards controlling the technique’s 

operation; and (4) the “‘general acceptance’” of the theory 

or technique.25

[14,15] In making the preliminary assessment, the trial 

judge has the discretion both to avoid unnecessary Neb. Rev. 

Stat. § 27-104 (Reissue 2016) hearings, where the reliability 

of an expert’s methods is stipulated to or properly taken for 

granted, and to require appropriate proceedings in the less 

usual or more complex cases, where cause for questioning 

the expert’s reliability arises.26 A trial court adequately demonstrates that it has performed its gatekeeping duty when the 

record shows (1) the court’s conclusion whether the expert’s 

opinion is admissible and (2) the reasoning the court used to 

reach that conclusion, specifically noting the factors bearing on reliability that the court relied on in reaching its 

determination.27

In Kumho Tire Co., the U.S. Supreme Court discussed how 

Daubert28 applies to the testimony of experts who are not scientists and concluded that the trial judge’s general gatekeeping 

obligation also applies to testimony based on technical and 

other specialized knowledge.29 The Court further held that

a trial court may consider one or more of the more specific 

factors that Daubert mentioned when doing so will help 

determine that testimony’s reliability. But, as the Court 

stated in Daubert, the test of reliability is “flexible,” and 

25 Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 1, 509 U.S. at 

594. Accord Schafersman v. Agland Coop, supra note 1.

26 Schafersman v. Agland Coop, supra note 1.

27 Id.

28 Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 1.

29 Kumho Tire Co. v. Carmichael, supra note 19.
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Daubert’s list of specific factors neither necessarily nor 

exclusively applies to all experts or in every case.30

Furthermore, the Court stated that

[o]ur emphasis on the word “may” thus reflects Daubert’s 

description of the [Fed. R. Evid.] 702 inquiry as “a flexible one.” . . . Daubert makes clear that the factors it 

mentions do not constitute a “definitive checklist or 

test.” . . . And Daubert adds that the gatekeeping inquiry 

must be “‘tied to the facts’” of a particular “case.”31

The Court stated that “‘[t]he factors identified in Daubert

may or may not be pertinent in assessing reliability, depending 

on the nature of the issue, the expert’s particular expertise, and 

the subject of his testimony.’”32 The Court further emphasized 

that the factors should not apply even in every instance in 

which the reliability of scientific testimony is challenged, 

but can help to evaluate the reliability even of experiencebased testimony.33

In Rankin v. Stetson,

34 we applied the Daubert/Schafersman

factors to expert testimony that the defendant failed to meet 

the standard of care in the treatment of the plaintiff’s spinal 

cord injury when the plaintiff did not receive surgery within 

72 hours of the injury. We held that it was not an abuse of 

discretion for the district court to reject the expert’s testimony, 

reasoning that the district court acted as a gatekeeper to ensure 

that the reasoning or methodology underlying the expert testimony was valid and properly applied. We explained that 

because the expert witness failed to disclose the underlying 

facts or data for his opinions, he was not qualified to testify to 

his opinion under § 27-702.35

30 Id., 526 U.S. at 141.

31 Id., 526 U.S. at 150.

32 Id.

33 Kumho Tire Co. v. Carmichael, supra note 19.

34 Rankin v. Stetson, 275 Neb. 775, 749 N.W.2d 460 (2008).

35 Id.
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In Zimmerman v. Powell,

36 we held that the district court 

abdicated its gatekeeping duty because it failed to explain 

its reasoning for overruling a Daubert/Schafersman motion. 

The plaintiff’s expert witness testified, over the defendant’s 

objection, to data that the expert had derived from a computer 

program. The district court overruled the objection, but did not 

explain why it had determined that the expert’s testimony was 

admissible under Daubert/Schafersman. We stated that a trial 

court, when faced with such an objection, “‘must adequately 

demonstrate by specific findings on the record that it has performed its duty as gatekeeper’” and in that case had failed to 

do so.37 Nevertheless, we found that in that instance, the district court’s failure to perform its gatekeeping duties did not 

result in prejudice to the defendant. We held that the court’s 

failure to conduct its gatekeeping function did not taint the 

issue of the defendant’s damages, and we modified the judgment accordingly.

It is clear that in Stetson, a medical malpractice case, we 

applied Daubert/Schafersman to standard of care testimony. 

Furthermore, as “‘specialized knowledge,’” expert testimony 

pertaining to the standard of care is subject to the trial judge’s 

general gatekeeping obligation.38

(c) Court Applied Daubert/Schafersman

to Doctors’ Expert Testimony

At the pretrial motion hearing, the Estate made a motion to 

exclude the testimony of the doctors’ expert witnesses on the 

basis that the expert witnesses failed to provide the methodologies used in reaching their expert opinions on the standard 

of care and failed to explain the application of such methodologies. The court noted on the record that the witnesses were 

“not testifying as to some novel form of science, medicine, 

36 Zimmerman v. Powell, supra note 2.

37 Id. at 430, 684 N.W.2d at 9.

38 See Rankin v. Stetson, supra note 34, 275 Neb. at 780, 749 N.W.2d at 465.
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engineering, anything like that,” but that the testimony regarding the standard of care was “straightforward” and was based 

on the witnesses’ personal knowledge:

[M]y view here is that this is not the type of opinion or 

science that is subject to a [Daubert/Schafersman] test. 

For that reason, your motion will be overruled.

. . . .

My view of [Daubert] is it applies to novel or science that is not settled. That is not — in other words, the 

standard of care is a settled method of science. How a 

standard of care is arrived at is a settled method. Every 

expert in the country would give you the same basis for 

determining what is the standard of care. Just what you 

said when you were making your argument.

So that is how it’s arrived at. All experts do it the 

same way.

. . . .

. . . I don’t think it’s an exception to [Daubert]. . . .

. . . .

What . . . I see before me based on the evidence 

you’ve provided for the purpose of this hearing is a 

straightforward medical opinion. And that is not, in my 

opinion, at this point subject to [Daubert].

Contrary to the Estate’s characterization on appeal, the 

trial court did not find that expert testimony on the standard 

of care in medical malpractice cases is exempt from Daubert/

Schafersman analysis. As is evident from the above excerpt 

from the pretrial motion hearing, the trial judge made several 

statements regarding whether Daubert/Schafersman applied. 

The Estate takes one of those statements out of the broader 

context of the judge’s pretrial hearing statements and ultimate findings to argue that the judge misstated and misapplied our Daubert/Schafersman jurisprudence. After review, 

however, we interpret the judge’s statements to be consistent 

with our previous case law and his judicial gatekeeping 

responsibilities.
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The trial court appropriately focused on both the nature 

of the challenged testimony and the objections raised by the 

Estate. Here, the witnesses’ testimony on the standard of care 

was not based on clinical practice guidelines, physician surveys, or any other scientific methodology or theory. Rather, 

it was empirical testimony based on their personal knowledge 

of the ordinary care, skill, and diligence commonly exercised 

by cardiac surgeons in Nebraska under similar circumstances 

and the actual care, skill, and diligence they exercise during operations.

Moreover, we understand the trial court’s ruling to have 

been premised on the Estate’s failure to sufficiently call into 

question the reliability or validity of the testimony being 

challenged. To raise a Daubert/Schafersman objection, the 

initial task falls on the party opposing expert testimony to sufficiently call into question the reliability or validity of some 

aspect of the anticipated testimony.39 Only after the factual 

basis, data, principles, methods, or their application has been 

sufficiently called into question does the proponent of the 

expert testimony have the burden of showing that the testimony is reliable.40

We find no merit to the Estate’s contention that the district 

court abandoned its gatekeeping function by failing to apply 

Daubert/Schafersman; nor do we find merit in the Estate’s 

contention that the district court failed to assess the methodology underlying the testimony and whether the methodology could properly be applied to the facts at issue. The court 

adequately demonstrated “‘by specific findings on the record’” 

that it performed its duty as gatekeeper.41

39 State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).

40 State v. Mason, 271 Neb. 16, 709 N.W.2d 638 (2006).

41 Zimmerman v. Powell, supra note 2, 268 Neb. at 430, 684 N.W.2d at 9.
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Cite as 299 Neb. 464

(d) Doctors’ Expert Testimony Met 

Daubert/Schafersman Standard

Next, we turn to whether the Daubert/Schafersman standard was met. The Estate argues that the court failed to note 

factors bearing on reliability and that while education is relevant under Daubert/Schafersman, the reasoning and methodology used to form an opinion is also required. Neither party 

disputes the professional qualifications of the other party’s 

expert witnesses.

The testimony offered by the expert witnesses was certainly relevant to the issue at trial. They testified to their 

education, training, and experience which formed the basis 

of their opinions as to the standard of care. Their opinions 

as to the standard of care were helpful to the jury only if 

the jury understood each expert’s qualifications and experience. Langdon, a cardiothoracic surgeon, testified that he was 

trained extensively in general surgery and that he completed 

a board certification in general surgery and thoracic surgery. 

Langdon stated that he is licensed in Nebraska and Iowa and 

has performed “six or 7,000 open heart operations.” Langdon 

also testified that he had been consulted by physicians who 

were seeking advice on the proper treatment of patients. In 

addition, Langdon’s curriculum vitae was submitted into evidence. Langdon then testified, over objection, that he met the 

standard of care.

Similarly, Batter, a cardiothoracic surgeon, testified to his 

education, training, and experience. Batter testified that he is 

board certified and licensed in Nebraska. Batter explained that 

he has been “doing this since 1995” and that he “probably 

averaged 250 heart surgeries a year.” Batter then testified, over 

objection, that he met the standard of care. The court stated 

that the Estate’s objection was overruled “for the same reason 

it was previously overruled prior to trial.”

We find no error in the district court’s determination that 

the testimony provided by the witnesses would assist the 

jury in understanding and determining the facts at issue in 
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this case. As noted above, the Daubert/Schafersman inquiry 

is “‘flexible.’”42 The Daubert/Schafersman standard is not 

“‘“some magical incantation.”’”43 Depending on the nature of 

the testimony offered, Daubert factors “‘may or may not be 

pertinent in assessing reliability.’”44 And “whether Daubert’s 

specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the 

trial judge broad latitude to determine.”45 We do not mean that 

trial courts must always determine the admissibility of standard 

of care testimony in a medical malpractice case by analyzing 

all of the Daubert/Schafersman factors. Instead, depending on 

the nature of the testimony offered and the objections thereto, 

Daubert factors “‘may or may not be pertinent in assessing reliability.’”46

We reject the Estate’s interpretation of Zimmerman,

47 that 

the district court similarly abdicated its gatekeeping duty in 

this case by failing to explain its reasoning and methodology. 

We side with those jurisdictions that have found that Daubert

factors apply to expert testimony on the standard of care.48

This should not be misconstrued as signaling some sort of 

change in our standard of care jurisprudence. We are aware 

some commentators have suggested that due to scientific and 

technological advancements in the practice of medicine, a 

standard of care based on local custom and ordinary practice is 

42 Kumho Tire Co. v. Carmichael, supra note 19, 526 U.S. at 150.

43 Zimmerman v. Powell, supra note 2, 268 Neb. at 430, 684 N.W.2d at 9.

44 Kumho Tire Co. v. Carmichael, supra note 19, 526 U.S. at 150.

45 Id., 526 U.S. at 153.

46 Id. See Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 1.

47 Zimmerman v. Powell, supra note 2.

48 Dickenson v. Cardiac & Thoracic Surgery TN, 388 F.3d 976 (6th Cir. 

2004); Sullivan v. U.S. Department of Navy, 365 F.3d 827 (9th Cir. 2004); 

Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396 (3d Cir. 2003); 

Mitchell v. U.S., 141 F.3d 8 (1st Cir. 1998); Seifert v. Balink, 372 Wis. 2d 

525, 888 N.W.2d 816 (2017).
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outdated and should be replaced with a Daubert-style analysis 

of scientific evidence.49 But in Nebraska, where the applicable 

standard of care testimony is statutory, such a policy debate 

is properly reserved for the Legislature, not the courts. For 

that reason, in applying the Daubert/Schafersman factors to 

standard of care testimony in a medical malpractice case, trial 

courts should be mindful not to supplant the customary care 

standard required by § 44-2810. As this court observed in 

Murray v. UNMC Physicians,

50 the standard of care in medical malpractice cases cannot be altered for public policy reasons: “We cannot depart from the customary standard of care 

on policy grounds, even if it is subject to criticism, because 

the standard of care is defined by statute and public policy is 

declared by the Legislature.”

The record shows the trial court considered the applicability of the Daubert/Schafersman factors, but found they offered 

little assistance in determining the reliability of the witnesses’ 

personal knowledge of the customary standard of care and 

their personal knowledge of the actions they performed during the surgeries. And because there was no objection to the 

qualifications of the witnesses to testify as experts, and the 

Estate offered nothing else that called into question the reliability of their testimony, the court overruled the Estate’s 

objections and allowed the testimony. Therefore, we find that 

the district court did not abuse its discretion in admitting the 

challenged testimony.

49 See, e.g., Nicole Hines, Why Technology Provides Compelling Reasons 

to Apply a Daubert Analysis to the Legal Standard of Care in Medical 

Malpractice Cases, 2006 Duke L. & Tech. Rev. 18 (2006); Carter L. 

Williams, Evidence-Based Medicine in the Law Beyond Clinical Practice 

Guidelines: What Effect Will EBM Have on the Standard of Care?, 61 

Wash. & Lee L. Rev. 479 (2004); Michelle M. Mello, Using Statistical 

Evidence to Prove the Malpractice Standard of Care: Bridging Legal, 

Clinical, and Statistical Thinking, 37 Wake Forest L. Rev. 821 (2002).

50 Murray v. UNMC Physicians, supra note 14, 282 Neb. at 271, 806 N.W.2d 

at 126.
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3. Estate’s Posttrial Motions

[16] The Estate argues that the district court abused its discretion in overruling the motion for a new trial, motion for 

judgment notwithstanding the verdict, and motion to strike the 

opinions of the doctors’ expert witnesses. The doctors contend 

that the district court properly exercised its discretion with 

regard to the admission of the standard of care testimony. A 

motion for new trial is to be granted only when error prejudicial to the rights of the unsuccessful party has occurred.51

Because we hold that the district court did not err in admitting 

the testimony, we also hold that the district court did not abuse 

its discretion in overruling the Estate’s posttrial motions.

The Estate’s second assignment of error is without merit.

VI. CONCLUSION

We conclude that the district court did not fail to perform 

its Daubert/Schafersman gatekeeping function. The district 

court therefore did not err in overruling the Estate’s posttrial 

motions, and its judgment is affirmed.

Affirmed.

Kelch, J., not participating in decision.

Wright, J., not participating.

51 Farmers & Merchants Bank v. Grams, 250 Neb. 191, 548 N.W.2d 764 

(1996).