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Nebraska Court of Appeals Advance Sheets

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CHRISTENSEN v. SHERBECK

Cite as 28 Neb. App. 332

Michael T. and Cathy D. Christensen, individually 

and as the parents and next friends of Chad 

M. Christensen, and as the Coguardians and 

Coconservators of Chad M. Christensen, 

a protected person, appellants, v. Beverly 

L. Sherbeck, Personal Representative 

of the Estate of Albert F. Sherbeck, 

deceased, and Beverly L. Sherbeck, 

individually, appellees.

___ N.W.2d ___

Filed May 12, 2020. No. A-19-124.

1. Expert Witnesses: Appeal and Error. Abuse of discretion is the 

proper standard of review of a district court’s evidentiary ruling on 

the admission of expert testimony under Daubert v. Merrell Dow 

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

469 (1993).

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

a judge, within the effective limits of authorized judicial power, elects 

to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial 

right or a just result in matters submitted for disposition through a judicial system.

3. Trial: Evidence: Appeal and Error. To constitute reversible error in a 

civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about evidence admitted 

or excluded.

4. Jury Instructions: Appeal and Error. In reviewing a claim of prejudice from jury instructions given or refused, the instructions must be 

read together, and if, taken as a whole, they correctly state the law, are 

not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error.

Nebraska Supreme Court Online Library

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

05/12/2020 09:07 AM CDT
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CHRISTENSEN v. SHERBECK

Cite as 28 Neb. App. 332

5. Jury Instructions: Judgments: Appeal and Error. Whether a jury 

instruction given by a trial court is correct is a question of law. When 

reviewing questions of law, an appellate court has an obligation to 

resolve the question independently of the conclusion reached by the 

trial court.

6. Words and Phrases. An unavoidable accident has been defined as an 

unexpected catastrophe which occurs without any of the parties thereto 

being to blame for it.

7. Negligence: Proof. A loss of consciousness constitutes an unavoidable 

accident and thereby a defense to an action based upon negligence; such 

a defense is an affirmative defense, and where the plaintiff has established a prima facie case of negligence, the burden of proof shifts to the 

defendant to establish the loss of consciousness defense.

8. ____: ____. Where a sudden loss of consciousness is an affirmative 

defense, a defendant’s burden is twofold: First, the defendant must 

present sufficient evidence to establish that he suffered a sudden loss 

of consciousness prior to the accident, and second, the defendant must 

prove that the loss of consciousness was not foreseeable.

9. Trial: Negligence: Motor Vehicles: Evidence. When the evidence is 

conflicting as to whether the accident was caused by the driver’s sudden 

loss of consciousness and whether the loss of consciousness was unforeseen, it is a question of fact to be determined by the jury; however, if 

the evidence points to only one reasonable conclusion, it is a question of 

law for the court.

10. Jury Instructions: Appeal and Error. It is error to give an unavoidable 

accident, or loss of consciousness, jury instruction where there is no evidence in the record to give legal support to the defense that the accident 

was unavoidable.

11. Evidence: Circumstantial Evidence: Proof. Any fact can be proved by 

direct or circumstantial evidence.

12. Negligence: Motor Vehicles: Notice: Proof. In establishing the loss of 

consciousness defense, the issue of foreseeability is crucial. The defense 

is not available where a driver was put on notice of facts sufficient to 

cause an ordinary and reasonable person to anticipate that his or her 

driving might likely lead to injury to others.

Appeal from the District Court for Custer County: Karin L. 

Noakes, Judge. Affirmed.

David S. Houghton and Keith A. Harvat, of Houghton, 

Bradford & Whitted, P.C., L.L.O., and John O. Sennett and 
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CHRISTENSEN v. SHERBECK

Cite as 28 Neb. App. 332

James V. Duncan, of Sennett, Duncan, Jenkins & Wickham, 

P.C., L.L.O., for appellants.

Daniel M. Placzek and Jared J. Krejci, of Smith, Johnson, 

Baack, Placzek, Allen, Connick & Hansen, for appellees.

Moore, Chief Judge, and Arterburn and Welch, Judges.

Arterburn, Judge.

I. INTRODUCTION

Michael T. and Cathy D. Christensen appeal from a judgment entered by the district court for Custer County which 

found in favor of Beverly L. Sherbeck and against the 

Christensens on the Christensens’ claim for damages arising 

out of a motor vehicle accident involving their son, Chad 

M. Christensen, and Beverly’s husband, Albert F. Sherbeck. 

Based on the jury’s verdict that Albert suffered a sudden 

loss of consciousness prior to the collision, no damages were 

awarded to the Christensens. For the reasons set forth herein, 

we affirm.

II. BACKGROUND

This action arises out of a motor vehicle accident that 

occurred in Custer County, Nebraska, on June 1, 2012. The 

following facts are not disputed: On the day of the accident, 

Albert was operating a pickup truck owned by himself and 

Beverly. He was driving toward his home and was headed 

eastbound on Highway 2 when he drove left of center and collided head on with a 10-passenger van traveling westbound. 

The van was transporting eight students from Broken Bow 

High School who were returning from a basketball clinic 

held in Kearney, Nebraska. The van was being driven by a 

basketball coach for the high school. As a result of the collision, Albert, the basketball coach, and the front seat passenger of the van, who was also a basketball coach for the 

high school, died at the scene. One of the students, Chad, was 

seriously injured.
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CHRISTENSEN v. SHERBECK

Cite as 28 Neb. App. 332

1. Pleadings

In March 2013, the Christensens filed an amended complaint against Beverly, both in her individual capacity and in 

her capacity as the personal representative of Albert’s estate. 

The amended complaint alleged that Albert was negligent in 

operating his vehicle and that Beverly was negligent in failing 

to prevent Albert from driving the vehicle or, in the alternative, was vicariously liable for Albert’s negligence because he 

was operating the vehicle in order to further a family purpose. 

The Christensens sought general damages for Chad’s “permanent[] disab[ility]” and future medical expenses for Chad’s 

ongoing care. The Christensens filed a separate lawsuit against 

Broken Bow Public Schools.

In her second amended answer, Beverly asserted numerous affirmative defenses to the allegations contained in the 

complaint, including that “[t]he accident alleged in [the 

Christensens’] Amended Complaint occurred after Albert . . . 

suffered a sudden loss of consciousness that was not foreseeable.” Beverly also filed a third-party complaint alleging that 

Broken Bow Public Schools was negligent in its operation 

of the van prior to the accident and that such negligence was 

a proximate cause of the injuries to Chad. We note that the 

claims against Broken Bow Public Schools are not discussed 

in this appeal.

2. The Christensens’ Motion in Limine

Prior to trial, the Christensens filed a motion in limine 

seeking to exclude Beverly’s proposed medical expert witnesses who were to testify that Albert suffered sudden cardiac death prior to the collision and was not conscious at the 

time of impact. In the motion, the Christensens alleged that 

the expert opinions should be excluded pursuant to the principles outlined in 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, 268 Neb. 138, 

681 N.W.2d 47 (2004). A hearing was held on the motion in 

limine. At the hearing, the Christensens offered into evidence 
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Cite as 28 Neb. App. 332

numerous exhibits, including an accident report completed by 

the Nebraska State Patrol, depositions from witnesses to the 

collision, and depositions of four different medical experts.

(a) Evidence Offered at Motion 

in Limine Hearing

The accident report, which was authored by Dion Neumiller, 

a trooper with the Nebraska State Patrol, detailed the results 

of the accident reconstruction analysis. The report indicated 

that Albert’s pickup truck, which was facing eastbound, “had 

come to final rest” with its front axle in the westbound lane 

of Highway 2 and its rear axle on the westbound paved shoulder. The truck had “severe contact damage to the front of the 

vehicle[, which had] fold[ed] the hood rearward.” The school 

van, which was facing westbound, “had come to final rest” 

also in the westbound lane. While the rear of the van was 

angled toward the shoulder, it still remained entirely within 

the westbound lane. The van “also had severe contact damage 

to the front, [which had] fold[ed] the hood rearward into the 

windshield.” In his deposition, Neumiller explained that the 

accident resulted in a “nearly . . . head-on collision” such that 

the vehicles were lined up “license plate to license plate” when 

they came to a stop.

The accident report revealed that the airbag control module 

from the school van indicated that in the 5 seconds leading up to the collision, the van was slowing down. In fact, 

the antilock brakes on the van were engaged half a second 

prior to the collision. To the contrary, the airbag control 

module from Albert’s pickup truck indicated that the truck 

continued at a consistent speed of 63 miles per hour in the 5 

seconds leading up to the collision. Neumiller testified that 

there was no indication that the pickup truck’s brakes were 

deployed at any point in the seconds leading up to the collision. Another trooper testified in his deposition that it is likely 

the pickup truck had its cruise control engaged at the time of 

impact. No preimpact or postimpact marks were located on 

the roadway.
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CHRISTENSEN v. SHERBECK

Cite as 28 Neb. App. 332

The steering wheel of Albert’s pickup truck was “fixed and 

rotated” to the right at approximately 20 degrees. Neumiller 

explained that this could indicate that “the last steering input 

made by the driver may have been to the right.” However, 

Neumiller also indicated that there could be other reasons for 

the steering wheel to have been slightly rotated during or after 

the collision.

Although Albert did not have his seatbelt on, he was sitting 

upright in the driver’s seat of the pickup truck at the time of 

the collision. His airbag was deployed and had “no significant 

blood” on it. Neumiller opined that the minimal amount of 

blood on the airbag could indicate that Albert was deceased 

prior to the collision.

Approximately 10 minutes prior to the collision, Albert initiated a telephone call using his cellular telephone. He spoke 

to a member of his church and inquired what songs the choir 

would be singing that Sunday. The telephone call lasted just 

over 5 minutes, and the recipient of the call later reported 

that Albert sounded “fine.” After the collision, Albert’s cellular telephone was located in his left shirt pocket. Albert’s 

family, who spent the day with him prior to the collision, also 

indicated that Albert seemed fine, although he had mentioned 

feeling tired.

There were two witnesses to the collision, John Scott and 

Lavera Scott, who were in a vehicle which was traveling 

directly behind Albert’s pickup truck. Both John and Lavera 

provided deposition testimony regarding their observations.

John testified that on the afternoon of the accident, he 

and his wife, Lavera, were driving eastbound on Highway 2, 

which was a two-lane highway. While he was driving, John 

observed a pickup truck approximately two blocks ahead of 

him on the highway. John estimated that the pickup truck 

must have been traveling between 55 and 60 miles per hour 

because John had his cruise control set at 60 miles per hour 

and “was beginning to gain a little on [the pickup truck].” 

John indicated that he could not see inside the pickup truck 

from his vantage point two blocks behind it.
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CHRISTENSEN v. SHERBECK

Cite as 28 Neb. App. 332

Prior to the collision, John did not observe the pickup truck 

swerve either onto the shoulder or into the oncoming traffic 

lane. In fact, John indicated that he did not observe anything 

unusual about the pickup truck prior to the collision. John did 

observe the collision. He testified that the pickup truck suddenly “jumped over” in front of the van. He described the 

movement of the truck as not “slow,” but “fast” and “[s]udden.” 

John testified that the pickup truck moved directly over into 

the oncoming traffic lane. John indicated that he never saw the 

pickup truck’s brake lights engage.

Although John did not know who was driving the pickup 

truck prior to the collision, when he approached the pickup 

truck after the collision, he learned that the driver was Albert. 

John testified that Albert was slumped down to the left after 

the collision. John was familiar with Albert and knew that 

some of Albert’s farmland was adjacent to where the accident occurred.

Lavera testified similarly to John’s testimony. She testified 

that she and her husband were driving “a couple of blocks” 

behind the pickup truck on the highway. From her vantage 

point, she could see that there was just one person in the 

pickup truck, but she was unable to observe specific movements of the sole occupant. Prior to the accident, she did 

not observe any unusual movement by the pickup truck. The 

pickup truck did not swerve onto the shoulder, did not move 

into the oncoming traffic lane, and did not swerve within its 

own lane. Lavera observed the collision. She described that 

“suddenly the pickup was there and then it wasn’t there.” The 

pickup truck had “almost jumped” into the oncoming lane of 

traffic. Lavera testified that the pickup truck’s movement in 

this regard was “sudden.” Lavera did not see the pickup truck’s 

brake lights engage.

Lavera testified that since the date of the accident, she had 

been diagnosed with macular degeneration, which had somewhat affected her vision. However, she also testified that she 

had no trouble viewing the collision.
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CHRISTENSEN v. SHERBECK

Cite as 28 Neb. App. 332

At the motion in limine hearing, the Christensens offered 

into evidence the deposition of one of the high school students 

who was riding in the school van at the time of the collision 

and who remembered the moments leading up to the accident. 

The student testified that immediately prior to the collision, 

he remembered the van’s driver telling everyone in the van 

to “hold on.” The student then looked up and observed a 

pickup truck “drifting into our lane.” He described the motion 

of the pickup truck as seeming slow. The student also testified that he believed that the van’s driver was attempting to 

avoid the impending collision by applying the brakes and 

trying to steer onto the shoulder of the road. We note that the 

Christensens also offered the deposition testimony of Chad. 

However, Chad is unable to recall any of the events surrounding 

the collision.

The remaining evidence offered by the Christensens at the 

motion in limine hearing was composed of deposition testimony from four medical experts. Two of the experts, Drs. 

Daniel McGowan and Jeffrey Mahoney, were retained by 

Beverly. The other two experts, Drs. Jeffrey Rubinstein and 

George Riley Nichols II, were retained by the Christensens.

McGowan is an interventional cardiologist who treated 

Albert for symptoms related to coronary disease beginning in 

February 2009. On February 27, McGowan diagnosed Albert 

as suffering from a 99-percent stenosis of the left circumflex 

artery. As a result of this diagnosis, McGowan placed a stent 

in that artery to improve blood flow. McGowan then prescribed beta-blocking medication for Albert in order to slow 

down his heart rate and treat both the blockage found in the 

left circumflex artery and Albert’s ongoing coronary artery 

disease. McGowan was unsure if Albert continued to take this 

medication at the time of the collision.

McGowan also diagnosed Albert as suffering from a 75- to 

80-percent stenosis in the right coronary artery. McGowan 

placed a stent in the right coronary artery in April 2009 and 

later, in January 2010, further repaired that artery with an 

atherectomy procedure.
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CHRISTENSEN v. SHERBECK

Cite as 28 Neb. App. 332

In May 2009, Albert was diagnosed as suffering from renovascular hypertension after testing revealed a 60- to 70-percent 

stenosis of his right renal artery. McGowan believed that the 

stenosis of the right renal artery caused Albert to suffer from 

high blood pressure. McGowan indicated that Albert’s high 

blood pressure was controlled with medication.

In February 2011, McGowan diagnosed Albert as suffering 

from mild left ventricular dysfunction. He described this condition as systolic dysfunction, which relates to how the heart 

contracts. Subsequent stress testing of Albert’s heart revealed 

an “ejection fraction” of 50 percent, which is slightly below 

a normal ejection fraction of 55 percent or more. McGowan 

indicated that Albert’s below normal ejection fraction was a 

residual effect of left ventricular heart damage, which was consistent with Albert’s having suffered a prior heart attack.

On September 2, 2011, Albert returned to McGowan complaining of increased fatigue and shortness of breath during 

exertion. He also reported having felt heart palpitations a few 

weeks prior to this visit, which McGowan believed could indicate that Albert was experiencing an abnormal heart rhythm. 

Testing revealed that Albert was suffering from atrial fibrillation, a fast heart rhythm causing a lack of effective contraction. 

McGowan prescribed three different medications to treat this 

condition. After the September 2011 visit, Albert did not return 

to see McGowan prior to his death in June 2012.

After Albert’s death, McGowan reviewed the autopsy report. 

Based on his review, McGowan believed that sometime after 

Albert’s last office visit and before the day of his death, he 

suffered a heart attack which went untreated and which caused 

a “large scar” in the wall of his heart. McGowan stated that 

“the extent of the infarct on the autopsy was much more than 

what I saw on the imaging modalities that I used.” McGowan 

did not, however, believe that Albert suffered a heart attack 

immediately prior to the collision because there were no 

observable signs of such a cardiac event in the autopsy. Rather, 

McGowan opined that Albert was at a high risk of suffering 
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CHRISTENSEN v. SHERBECK

Cite as 28 Neb. App. 332

a sudden cardiac death at the time of the collision and had, 

in fact, suffered sudden cardiac death immediately prior to 

the collision.

McGowan explained that sudden cardiac death “is when 

the heart goes into a rhythm that’s very fast. Typically in that 

situation, the two rhythm disorders are ventricular fibrillation, 

ventricular tachycardia, where the heart’s beating over 300 

times a minute, cannot fill full of blood, and the patient will 

decompensate, pass out and die.” McGowan further explained 

that there are no observable indications which can be found 

on an autopsy which would demonstrate that a person suffered 

sudden cardiac death. Rather, his opinion that Albert suffered 

sudden cardiac death prior to the collision was based upon

the medical records from the time that [McGowan began] 

car[ing] for [Albert], which would include the extent of 

his coronary disease; his risk factors for sudden cardiac 

death, including, [age, male sex, atrial fibrillation, history 

of a coronary vascular disease event in the past year]; the 

autopsy findings of [an extensive infarct in the posteriorlateral distribution]; and also the cardiomyopathy or cardiomegaly that they found on autopsy.

McGowan essentially opined that while Albert was driving, 

he suffered from sudden cardiac death which made him pass 

out within a few seconds. Due to Albert’s unconsciousness, 

he drove into the oncoming traffic lane and collided with the 

school van. McGowan indicated that he did not disagree with 

the official cause of Albert’s death listed on his death certificate, which was multiple blunt force trauma to his head, neck, 

and trunk. McGowan simply opined that the collision was a 

result of Albert’s suffering from sudden cardiac death.

Mahoney concurred with McGowan’s opinions that Albert 

was at a high risk for sudden cardiac death and, in fact, suffered sudden cardiac death prior to the collision. Mahoney is a 

cardiologist who specializes in electrophysiology. Specifically, 

Mahoney specializes in diagnosing and treating conditions 

that may lead to sudden cardiac death, ventricular fibrillation, 
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or ventricular tachycardia. In forming his opinions, Mahoney 

reviewed Albert’s medical records, the autopsy report, and 

various witness statements.

Based upon Mahoney’s review of these documents, he 

opined that immediately prior to the collision, Albert suffered 

a sudden life-threatening abnormal heart rhythm that caused 

him to suddenly and abruptly lose consciousness, which in 

turn caused him to abruptly swerve into the oncoming lane 

and collide with the school van. Mahoney conceded that there 

was nothing specific observed during Albert’s autopsy which 

definitively demonstrated that Albert suffered from sudden 

cardiac death; however, certain findings from the autopsy 

demonstrated that Albert was at a high risk for suffering from 

sudden cardiac death. These findings included “extensive coronary artery disease, a large posterolateral myocardial infarction, a large scar in the heart which . . . undoubtedly affect[ed] 

his pumping function of his heart.”

Mahoney testified that the results of the autopsy revealed 

that sometime after May 2011 (the day of Albert’s last stress 

test with McGowan) but before the day of the collision, Albert 

suffered a “silent[, but significant,] heart attack[]” which left 

a large scar in his heart. Mahoney opined that when considering Albert’s history of heart-related problems together with 

the large scar from a significant heart attack observed during the autopsy, Albert’s risk of sudden cardiac death in any 

given 5-year period was approximately 12 to 15 percent. He 

explained that research has demonstrated that 80 percent of 

patients who experience sudden cardiac death have suffered 

from coronary artery disease. Seventy-five percent of patients 

who experience sudden cardiac death have suffered a prior 

heart attack. Albert had both of those risk factors.

Mahoney ultimately opined that it is more likely than not 

that Albert died of a sudden cardiac death or an abnormal heart 

rhythm. He further explained that the “vast majority” of people 

who have sudden cardiac death have no prior symptoms: “They 

are perfect one second, the next second they collapse.”
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CHRISTENSEN v. SHERBECK

Cite as 28 Neb. App. 332

Rubinstein is a cardiologist who was retained by the 

Christensens to provide an opinion regarding whether Albert 

suffered sudden cardiac death prior to the collision. In reaching his opinion, Rubinstein reviewed Albert’s medical records, 

the autopsy report, the death certificate, photographs, and 

witness statements. Rubinstein agreed with the opinions of 

McGowan and Mahoney that Albert was at risk for sudden 

cardiac death due to his coronary artery disease and some scarring in his heart. However, Rubinstein did not agree that Albert 

suffered sudden cardiac death prior to the collision. He opined 

that such an event was “highly unlikely,” or at least no more 

likely than that Albert fell asleep prior to the collision or was 

distracted prior to the collision. Rubinstein indicated that there 

was no more than a 20-percent likelihood that Albert suffered 

a sudden cardiac event just prior to the collision.

Ultimately, Rubinstein asserted that any theory that Albert 

died, or suffered from, sudden cardiac death prior to the collision was “nothing more than pure speculation” because there 

is no way to definitively prove what happened in the moments 

leading up to the collision.

Nichols is a forensic pathologist who was retained by the 

Christensens to provide a further opinion regarding whether 

Albert suffered sudden cardiac death prior to the collision. 

In reaching his opinion, Nichols reviewed the autopsy report, 

the accident report, and some of Albert’s medical records. 

Nichols opined that Albert did not suffer from sudden cardiac 

death prior to the collision. Nichols found evidence of “cardiac output” for “at least . . . a little while” after the accident, 

including the amount of blood in Albert’s chest and abdominal cavities and surrounding his brain during the autopsy. 

He explained that such bleeding indicates that Albert’s heart 

continued to work for some amount of time after the collision. 

In addition, Nichols pointed to the lack of any “acute finding 

in [Albert’s] coronary arteries [to definitively demonstrate] 

sudden cardiac death.” Although, Nichols conceded that it is 

impossible to view a fatal, irregular heart rhythm during an 
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CHRISTENSEN v. SHERBECK

Cite as 28 Neb. App. 332

autopsy. He also testified that Albert’s heart showed irregularities, including evidence of a “large previous heart attack” and 

severe coronary artery disease.

Nichols also found evidence that Albert was seated upright 

in the driver’s seat at the time of the collision because “a mark 

very similar to a steering wheel mark [was present] on his 

chest.” Nichols opined that if Albert suffered sudden cardiac 

death prior to the accident and lost consciousness, his hands 

would have dropped from the steering wheel and he would 

have slumped over.

Finally, Nichols opined that any opinion that Albert suffered or died from a sudden cardiac event is nothing more 

than speculation. Nichols indicated that there is simply no 

way to determine whether Albert suffered from sudden cardiac death, because he was not wearing a heart monitor 

and no one was in the pickup truck with him to report what 

Albert experienced.

(b) District Court Decision on the 

Christensens’ Motion in Limine

After the hearing on the Christensens’ motion in limine, 

the district court entered a detailed order denying, in part, 

and granting, in part, the motion. Specifically, the district 

court explained that Beverly’s medical experts, McGowan and 

Mahoney, could testify as to two opinions if allowed by the 

court. First, they could testify that Albert was at a high risk 

of suffering a severe cardiac event, like sudden cardiac death. 

Second, they could testify that Albert did, in fact, suffer a cardiac event immediately prior to the collision which rendered 

him unconscious. The court noted, “Both opinions are relevant 

and would assist the trier of fact in determining the cause of 

the collision and whether the sudden loss of consciousness 

defense has been proven.” However, that conclusion did not 

end the court’s inquiry. The court then analyzed whether each 

opinion met “the additional requirements outlined in Daubert 

and Schafersman.”
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The district court found that McGowan’s and Mahoney’s 

opinion that Albert was at a high risk of suffering a severe 

cardiac event was admissible. The court indicated that both 

doctors are qualified to testify as experts regarding diseases 

of the heart and that the methodology and reasoning underlying each of their opinions about Albert’s risk of suffering a 

severe cardiac event is scientifically valid and reliable. The 

court also indicated, “The factfinder should be allowed to 

weigh this evidence against the other possible causes to make 

[its] factual determination.” Finally, the court found that the 

opinion was not substantially outweighed by the danger of 

unfair prejudice.

The district court found that McGowan’s and Mahoney’s 

opinion that Albert did, in fact, suffer a cardiac event immediately prior to the collision which rendered him unconscious 

was not admissible. The court pointed to the testimony of both 

doctors that there was no medical evidence to prove that Albert 

suffered a sudden cardiac event on the date of the collision 

and, as a result, found that the facts supporting the doctors’ 

opinions are “lacking.” The court also found that the reasoning 

and methodology the doctors used in arriving at each of their 

opinions that Albert suffered a sudden cardiac event just prior 

to the collision is not supported by the scientific tests and studies presented. The court indicated that the doctors could not 

give an opinion based upon inferences.

After the district court entered its order, the Christensens 

filed a supplemental motion in limine. In the motion, the 

Christensens renewed their argument that “any evidence relating to [Albert’s] medical condition and the presence of risk factors immediately before the accident on June 1, 2012, including the testimony of . . . McGowan and . . . Mahoney,” should 

be excluded. The court denied this supplemental motion. The 

court explained:

The evidence is relevant. The jury is charged with 

determining the cause of the accident. [Beverly has] raised 

sudden loss of consciousness as a defense. [Albert’s] 
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medical condition is relevant to that determination. It is 

also relevant to determine whether any possible loss of 

consciousness was foreseeable.

The admission of this evidence does not permit the jury 

to improperly speculate as to causation. [Albert’s] medical condition is one of many facts and inferences the jury 

is allowed to consider when determining causation. The 

doctor[s’] testimony regarding his medical condition prior 

to the accident is not speculative. It is based on information these experts had direct knowledge of, is reliable and 

can be presented as circumstantial evidence by [Beverly] 

to prove loss of consciousness.

The court agrees that the causal link between [Albert’s] 

medical condition and causation must be established 

through expert testimony. This is consistent with the 

court’s prior ruling.

3. Trial

At trial, the parties presented voluminous evidence, some 

of which was previously offered during the hearing on the 

Christensens’ motion in limine. Given the issues presented 

by this appeal, we limit our recitation of the evidence presented at trial to evidence that is relevant to Beverly’s defense 

that Albert suffered a sudden loss of consciousness prior to 

the collision.

During the trial, the Christensens called Neumiller to testify 

regarding the results of his accident reconstruction investigation. Neumiller detailed the way the vehicles were situated 

after the impact and provided his opinion that the collision 

was “a near head-on collision with license plate almost to 

license plate.” He also relayed the information gained from 

the airbag control modules of both vehicles, including that 

although the school van’s brakes were engaged prior to the 

impact, Albert never engaged his pickup truck’s brakes or 

even slowed down.

Neumiller indicated that Albert was likely seated in the 

driver’s seat at the time of the collision. Neumiller testified 
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that the driver’s side airbag did deploy in Albert’s pickup 

truck and that it did have some blood on it which was consistent with Albert’s facial injuries. In addition, the damage to 

the steering wheel was consistent with someone having been 

seated in the driver’s seat. Neumiller did indicate, however, 

that there was not enough information to definitively determine whether Albert was seated upright or was slumped over 

the steering wheel at the time of the collision. Additionally, 

Neumiller noted that the airbag did not have “significant” 

amounts of blood on it which could indicate that Albert’s heart 

had stopped pumping by the time of the collision. A sheriff’s 

deputy, who was the first law enforcement officer to arrive at 

the scene of the collision, noted that although Albert’s legs 

were in the driver’s seat, the rest of his body “was laid over 

towards the passenger seat.”

Neumiller testified that the steering wheel in Albert’s 

pickup truck was rotated 20 degrees. Neumiller explained that 

rotation could be due to a number of reasons, including that 

Albert turned the wheel just prior to impact, that the force of 

Albert’s body changed the position of the steering wheel during the collision, or that the steering wheel linkage was damaged during the impact.

Finally, Neumiller testified that although Albert used his cellular telephone to place a call approximately 10 to 12 minutes 

prior to the collision, there is no evidence to suggest he was 

using his cellular telephone at the time of the collision because 

it was found in his shirt pocket during the autopsy.

The Christensens next called Beverly to testify regarding 

Albert’s activities on the day of the collision. Beverly testified 

that on June 1, 2012, she and Albert spent much of the day 

helping their son and daughter-in-law with a garage sale at the 

local fairground. In fact, the two had spent a “long and tiring 

day” the day before helping with the garage sale.

On the morning of June 1, 2012, Albert complained that his 

back was hurting, so he stayed behind at home while Beverly 

left to assist with the garage sale. Albert then arrived at the 
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sale at approximately 10:30 a.m. and began visiting with customers and accepting payments for the garage sale items. After 

lunch, Albert accompanied his son to deliver a table and chairs 

that had been purchased by a customer at the garage sale. 

When they returned to the sale, Albert resumed his place at the 

“money table” and continued to visit with customers. Beverly 

testified that Albert seemed “fine.”

At approximately 3:30 p.m. that day, Albert indicated that 

the garage sale was no longer busy and that he was “kind of 

tired” so he was going to return home. Beverly testified that, 

at the time, she believed that Albert was more bored than he 

was tired.

Beverly testified that the collision occurred approximately 

three-fourths of a mile from the road which led to their home 

and 1 mile from their home. Directly adjacent to the collision 

site were fields which she and Albert owned, but which they 

rented out to others for farming. While Beverly explained that 

sometimes she and Albert would take a drive to check on the 

crops at the rented fields, Albert would always stop the vehicle to observe the fields, rather than just drive by. However, 

Beverly believed that at the time of the collision, the crops 

were not even up yet, so there would have been nothing to 

see in the fields. Beverly indicated that Albert would get tired 

while driving “[m]aybe once in a while.”

By the time of the trial, the two witnesses to the collision, 

John and Lavera, were deceased. As a result, the Christensens 

read into evidence each of their deposition testimonies. The 

specifics of their depositions are detailed above in our recitation of the evidence offered at the hearing on the Christensens’ 

motion in limine.

After the Christensens rested, Beverly offered into evidence 

the videotaped trial depositions of McGowan and Mahoney. 

The Christensens objected to this evidence, arguing that it was 

not relevant. Those objections were overruled.

McGowan testified that he is a board-certified interventional cardiologist. He explained that a cardiologist is a doctor 
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who cares for patients that have cardiovascular diseases. An 

interventional cardiologist cares for patients that have coronary disease, by implanting “stents [and] balloons” in both 

coronary arteries located within the heart and other arteries 

located throughout the body.

McGowan treated Albert from February 2009 through 

September 2011 for cardiovascular problems. In his trial 

deposition, McGowan explained the specific treatment he provided to Albert during this time period. This testimony is very 

similar to the testimony we detailed above in our recitation 

of the evidence offered at the hearing on the Christensens’ 

motion in limine. As such, we do not reiterate the particulars of this testimony here, other than to note that during his 

trial deposition, McGowan provided further details regarding stress testing completed on Albert from February 2009 

through September 2011. Such testing indicated that Albert’s 

ejection fraction was normal after the stents were placed in 

the left and right sides of his heart. However, by May 2011, 

Albert’s ejection fraction had dropped to “[l]ow normal.” The 

last time that Albert saw McGowan in September 2011, he 

complained of fatigue, shortness of breath, and intermittent 

heart palpitations. Testing revealed that Albert was suffering 

from episodes of atrial fibrillations, indicating that the top 

chamber of his heart was not staying in rhythm and was not 

contracting effectively. McGowan prescribed a medication to 

try to normalize Albert’s heart rhythm and another to thin his 

blood to reduce the risk of a stroke.

After Albert’s death, McGowan reviewed the autopsy report. 

McGowan explained that many of the autopsy findings, as 

they related to Albert’s heart, were “significant.” The autopsy 

revealed that Albert’s heart was enlarged and that he “had 

extensive coronary artery disease involving the left main 

artery. Two branches of the LAD called diagonals, as well as 

the right coronary artery, further show that he had an extensive 

infarct involving the left ventricular myocardicum.” McGowan 

explained that an infarct is a heart attack. He opined that 
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Albert had suffered a heart attack sometime between September 

2011, when McGowan last examined Albert, and June 2012, 

prior to the collision. As a result of the heart attack, Albert 

had “extensive scarring” which placed him “at a much higher 

risk of abnormal heart rhythms and also sudden cardiac death.” 

Sudden cardiac death is when a person’s heart beats abnormally with no effective contraction. McGowan stated, “Those 

patients have complete hemodynamic collapse, will pass out, 

and will pass away” within seconds.

McGowan explained that an autopsy cannot show whether 

a person suffered sudden cardiac death, because an autopsy 

does not show how a person’s heart was beating prior to 

death. However, McGowan opined that on the day of the collision, Albert was “at considerable increased risk for sudden 

cardiac death” based upon his clinical risk factors. Those factors included Albert’s gender, the large size of his heart, and 

“his age, his established coronary disease, the extent of his 

coronary disease on autopsy, as well as his monitor showing 

PVCs, at times ventricular begeminy, as well as the extensive 

infarct report on the path sections.” McGowan testified that 

patients do not typically have any warning that they are about 

to experience sudden cardiac death. McGowan testified that he 

never advised Albert to stop driving.

Mahoney testified that he is a board-certified cardiologist who specializes in electrophysiology. He explained that, 

essentially, he specializes in abnormal heart rhythms, including 

implanting pacemakers, defibrillators, and other heart failure devices. Mahoney reviewed Albert’s medical records and 

the autopsy report. Based on his review of this information, 

he opined that Albert was at extremely high risk for suffering from sudden cardiac death on the day of the collision. 

Mahoney explained that when a person suffers from sudden 

cardiac death, they will “abruptly collapse.”

Mahoney based his opinion on multiple factors. First, he 

found evidence in the autopsy report that Albert had suffered a 

heart attack sometime between his last stress test in May 2011 
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and approximately 6 weeks prior to the collision on June 1, 

2012. This heart attack had caused “extensive scarring” within 

the heart which had left the heart wall muscle weak. Mahoney 

noted that Albert had never reported having such a heart attack 

to medical professionals. Mahoney did not believe Albert’s 

lack of report to be unusual, as people have “silent” heart 

attacks all the time.

Second, Mahoney believed that the size of Albert’s heart 

was a risk factor for sudden cardiac death. Mahoney stated, 

“[A]n enlarged heart would potentially put you at higher risk 

of sudden cardiac death in the general population.” Other risk 

factors included Albert’s suffering from significant coronary 

artery disease, from atherosclerotic heart disease, and from 

premature ventricular contraction. Mahoney further stated that 

75 percent of patients who experience sudden cardiac arrest 

have a history of having a heart attack. Eighty percent of 

patients who experience sudden cardiac death have significant 

coronary artery disease.

Mahoney testified that there is no pathologic findings that 

can be observed during an autopsy to demonstrate that someone suffered from sudden cardiac death. Rather, an autopsy 

can demonstrate that someone was at significant risk for 

such an episode. Mahoney opined that Albert may not have 

had any warning that he was about to experience sudden cardiac death.

After Beverly rested her case, the Christensens read into 

evidence portions of Mahoney’s discovery deposition, Nichols’ 

discovery deposition, and Rubinstein’s discovery deposition as 

rebuttal evidence. Beverly objected to this rebuttal evidence, 

but the objections were overruled.

The portion of Mahoney’s discovery deposition that was read 

into evidence included his explanation of “typical” symptoms 

suffered during a “massive” heart attack. Mahoney explained 

that typical symptoms include crushing substernal chest pain, 

heaviness, shortness of breath, sweating, nausea, and vomiting. Mahoney indicated that there was no evidence that Albert 
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had ever presented to a medical professional complaining of 

those symptoms.

The portion of Nichols’ discovery deposition that was read 

into evidence included his opinion that any theory that Albert 

either suffered or died as a result of any sudden cardiac event 

prior to the collision can be nothing more than pure speculation. Nichols explained this opinion as follows:

If it’s a cardiac event, you must have a monitor of some 

type on the person to be able to prove it, or an observer in 

the car with them to be able to make — make the observation. There’s no witness in — in the pickup truck. I’m 

unaware of a monitor being placed upon him leading up 

to — to his — to the collision.

The portion of Rubinstein’s discovery deposition that was 

read into evidence included his opinion that any theory that 

Albert either suffered or died as the result of a sudden cardiac 

death prior to the collision can be nothing more than pure 

speculation. Rubinstein explained, “He could’ve had multiple 

reasons to have driven into the other car.” Rubinstein also indicated that there was no medical evidence to prove that Albert 

suffered a sudden cardiac event prior to the collision.

At the close of the evidence, the district court gave the jury 

an instruction on the loss of consciousness defense raised by 

Beverly, over the Christensens’ objections. Jury instruction No. 

2 read, in pertinent part:

DEFENDANTS[’] DEFENSE 

ISSUES

In defense to plaintiff’s claims, Defendant Beverly 

Sherbeck, Personal Representative of the Estate of Albert 

Sherbeck, deceased[,] and Beverly Sherbeck claim that 

Albert Sherbeck suffered a sudden loss of consciousness 

prior to the collision.

BURDEN OF PROOF

In connection with their claim that Albert Sherbeck 

suffered a sudden loss of [c]onsciousness, the burden is 
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on defendant to prove by the greater weight of the evidence both of the following:

1. That Albert Sherbeck suffered a sudden loss of consciousness prior to the accident; and

2. The loss of consciousness was not foreseeable.

EFFECT OF FINDINGS

If the defendant has met her burden of proving her 

defense, the[n] your verdict must be for Beverly Sherbeck, 

Personal Representative of the Estate of Albert Sherbeck, 

deceased, on this claim . . . .

Ultimately, the jury returned a verdict in favor of Beverly, 

both in her personal capacity and in her capacity as the personal representative of Albert’s estate. Specifically, the jury 

found that although the Christensens had sufficiently proved 

their negligence claims, Beverly had also sufficiently proved 

that Albert suffered a sudden loss of consciousness prior to 

the collision.

The Christensens filed a motion for new trial alleging that 

the district court erred in instructing the jury on the loss of 

consciousness defense because there was not sufficient, competent evidence presented during the trial to prove that Albert 

had, in fact, lost consciousness prior to the collision. The 

Christensens stated that “the Court’s instruction to the jury on 

sudden loss of consciousness materially affected the substantial rights of the [Christensens], is not sustained by sufficient 

evidence and is contrary to law.” After a hearing, the district 

court denied the motion for new trial.

The Christensens appeal from the verdict entered against 

them and in favor of Beverly.

III. ASSIGNMENTS OF ERROR

On appeal, the Christensens allege, renumbered and consolidated, that the district court erred in (1) admitting into evidence 

the expert medical opinions of McGowan and Mahoney and 

(2) instructing the jury on the sudden loss of consciousness 

defense where there was not sufficient evidence presented at 

trial to support such a defense.
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IV. STANDARD OF REVIEW

[1-3] Abuse of discretion is the proper standard of review of 

a district court’s evidentiary ruling on the admission of expert 

testimony under Daubert v. Merrell Dow Pharmaceuticals, 

Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). 

Gonzales v. Nebraska Pediatric Practice, 26 Neb. App. 764, 

923 N.W.2d 445 (2019). A judicial abuse of discretion exists 

when a judge, within the effective limits of authorized judicial 

power, elects to act or refrain from acting, but the selected 

option results in a decision which is untenable and unfairly 

deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Id. 

To constitute reversible error in a civil case, the admission 

or exclusion of evidence must unfairly prejudice a substantial 

right of a litigant complaining about evidence admitted or 

excluded. Id.

[4,5] In reviewing a claim of prejudice from jury instructions given or refused, the instructions must be read together, 

and if, taken as a whole, they correctly state the law, are not 

misleading, and adequately cover the issues supported by the 

pleadings and evidence, there is no prejudicial error. Jay v. 

Moog Automotive, 264 Neb. 875, 652 N.W.2d 872 (2002). 

Whether a jury instruction given by a trial court is correct is a 

question of law. When reviewing questions of law, an appellate 

court has an obligation to resolve the question independently 

of the conclusion reached by the trial court. Id.

V. ANALYSIS

1. Admissibility of Expert Testimony 

on Loss of Consciousness Defense

On appeal, the Christensens assert that the district court 

erred in permitting McGowan and Mahoney to testify that 

Albert was at a high risk of suffering from sudden cardiac death. Although the Christensens broadly asserted in the 

district court that this expert medical testimony should be 

excluded pursuant to the principles outlined in Daubert v. 
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Merrell Dow Pharmaceuticals, Inc., supra, and Schafersman 

v. Agland Coop, 268 Neb. 138, 681 N.W.2d 47 (2004), on 

appeal, the Christensens narrowed the focus of their argument to whether the expert opinions were relevant to the 

issue of the cause of the collision. Upon our review, we 

agree with the district court that McGowan’s and Mahoney’s 

opinion that Albert was at a high risk of suffering from sudden cardiac death was relevant in determining the cause of 

the collision.

In this case, the main issue in contention at trial was the 

cause of the collision. More specifically, the jury was asked 

to decide why Albert’s pickup truck veered into the oncoming traffic lane and struck the school van. The Christensens 

offered the jury multiple theories to support their belief that 

Albert was negligent, including that Albert fell asleep while 

driving, that he became distracted by observing the status of 

the farmland he rented out, or that he intentionally caused 

the collision. Beverly offered the jury one theory: that Albert 

suddenly lost consciousness while driving after suffering from 

sudden cardiac death.

In order to support her theory of causation, Beverly offered 

expert medical testimony from McGowan and Mahoney that 

Albert was at a high risk for suffering from sudden cardiac 

death. The doctors also opined that if Albert had suffered 

from sudden cardiac death in the moments prior to the collision, he would have been rendered unconscious almost 

immediately. As the district court found, this expert medical 

testimony was relevant to the jury’s determination of why 

Albert’s pickup truck veered into the oncoming traffic lane. 

“Relevant evidence” is defined as that evidence which has 

any tendency to make the existence of any fact that is of 

consequence to the determination of an action more probable 

or less probable than it would be without the evidence. Neb. 

Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2016); City of 

Omaha v. Savard-Henson, 9 Neb. App. 561, 615 N.W.2d 497 

(2000). Expert medical evidence that Albert was at a high risk 
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for suffering from sudden cardiac death makes it more probable that Albert did, in fact, suffer from such a cardiac event 

prior to the collision. In addition, evidence that Albert was at 

a high risk for suffering from sudden cardiac death makes it 

more probable that he lost consciousness prior to the collision 

with the school van. The expert medical evidence is also relevant to a determination of whether any loss of consciousness 

was foreseeable.

Moreover, it is clear from the testimonies of both McGowan 

and Mahoney that their opinions that Albert was at a high risk 

for suffering from sudden cardiac death were not speculative. 

Instead, the expert opinions were based upon both doctors’ 

extensive knowledge in the area of heart-related conditions and 

the doctors’ review of both Albert’s medical records and the 

autopsy report. In fact, in the case of McGowan, his opinion 

was also based upon his direct treatment of Albert in the years 

prior to his death.

We find that the district court did not err in permitting 

McGowan and Mahoney to offer their expert medical opinions 

that Albert was at a high risk of suffering from sudden cardiac 

death at the time of the collision. The opinions were reliable 

and were relevant to the jury’s determination of the ultimate 

cause of the collision.

2. Jury Instruction on Loss of 

Consciousness Defense

On appeal, the Christensens also renew the argument they 

raised multiple times before the district court that Beverly 

failed to meet her burden to establish the requisite elements 

of an unavoidable accident defense and that, as a result, 

the district court should not have instructed the jury regarding such a defense. Specifically, the Christensens assert that 

Beverly did not present sufficient, competent evidence to prove 

that Albert did, in fact, lose consciousness prior to the collision with the school van. The Christensens also assert that 

even if Beverly did sufficiently demonstrate Albert’s loss of 
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consciousness, she failed to demonstrate the loss of consciousness was not foreseeable.

[6,7] An unavoidable accident has been defined by the 

Nebraska Supreme Court as an unexpected catastrophe which 

occurs without any of the parties thereto being to blame for it. 

Storjohn v. Fay, 246 Neb. 454, 519 N.W.2d 521 (1994). See 

Owen, Administrator v. Moore, 166 Neb. 226, 88 N.W.2d 759 

(1958). A loss of consciousness constitutes an unavoidable 

accident and thereby a defense to an action based upon negligence. Storjohn v. Fay, supra. Such a defense is an affirmative 

defense, and where the plaintiff has established a prima facie 

case of negligence, the burden of proof shifts to the defendant 

to establish the loss of consciousness defense. See id.

[8-10] Where a sudden loss of consciousness is an affirmative defense, a defendant’s burden is twofold: First, the defend

ant must present sufficient evidence to establish that he suffered a sudden loss of consciousness prior to the accident, and 

second, the defendant must prove that the loss of consciousness 

was not foreseeable. Id. When the evidence is conflicting as 

to whether the accident was caused by the driver’s sudden 

loss of consciousness and whether the loss of consciousness 

was unforeseen, it is a question of fact to be determined by 

the jury. Id. However, if the evidence points to only one reasonable conclusion, it is a question of law for the court. Id.

Accordingly, it is error to give an unavoidable accident, or loss 

of consciousness, jury instruction where there is no evidence in 

the record to give legal support to the defense that the accident 

was unavoidable. See id.

Albert died in the collision, so no light can be shed on his 

own experience immediately before the collision. In addition, 

there is no eyewitness who can directly confirm that Albert 

suddenly and actually lost consciousness prior to the collision, 

and no postaccident evidence exists that can directly confirm 

that Albert suddenly and actually lost consciousness prior to 

the collision. However, there is relevant evidence supporting each parties’ position on the possibility that Albert lost 
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consciousness prior to his truck’s entering the oncoming traffic 

lane and colliding with the school van.

The Christensens point to the lack of eyewitness testimony 

which would definitively demonstrate that Albert lost consciousness and slumped over prior to veering into the oncoming lane of traffic. Instead, the Christensens rely on evidence 

that Albert was seated upright in the driver’s seat of his truck 

at the time of the collision, including evidence of Albert’s 

blood on the driver’s side airbag and his position immediately 

after the collision. The Christensens assert that, presumably, 

had Albert lost consciousness prior to the collision, he would 

not have remained seated upright, especially since he was not 

wearing his seatbelt. The Christensens also rely on the lack of 

any tangible, medical evidence that Albert suffered a heartrelated incident prior to the collision.

To the contrary, Beverly offered evidence which suggests 

that Albert had lost consciousness prior to the collision. This 

evidence includes the expert testimonies of both McGowan 

and Mahoney that Albert was at a very high risk of suffering from sudden cardiac death, which would have caused him 

to lose consciousness in a matter of seconds. Both doctors 

also indicated that sudden cardiac death could not be readily 

identifiable during an autopsy. The deposition testimonies of 

John and Lavera indicate that Albert was driving his pickup 

truck straight down the road at a steady speed in the minutes 

prior to the collision until it “suddenly” “jumped over” into 

the oncoming lane of traffic and in front of the school van. 

Beverly suggests that this evidence indicates that something 

sudden and catastrophic happened in the moments leading up 

to the collision. Finally, Beverly points to evidence from the 

accident report which indicated that Albert failed to apply his 

truck’s brakes or take any evasive action to avoid the collision in the seconds leading up to the accident. In fact, Albert’s 

truck continued at a constant rate of speed in the seconds leading up to the collision. Neumiller, the author of the accident 

report, testified that there was a lack of any “significant” blood 
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on the driver’s side airbag in Albert’s truck. Neumiller opined 

that the lack of blood could indicate that Albert’s heart had 

stopped pumping prior to the collision.

In their brief on appeal, the Christensens highlight that 

Beverly’s assertion that Albert had lost consciousness prior to 

the collision is based upon circumstantial, rather than direct, 

evidence. The Christensens argue that a sudden loss of consciousness defense should only be available where there is 

direct evidence of a loss of consciousness, such as eyewitness 

testimony. They further assert that evidence that Albert lost 

consciousness prior to the collision “simply invited the jury to 

speculate.” Brief for appellant at 30.

[11] The Christensens’ argument that Albert’s loss of consciousness had to be proved by direct evidence is not consist

ent with precedent from the Supreme Court which specifically 

recognizes that any fact can be proved by direct or circumstantial evidence. See, e.g., Jacobs Engr. Group v. ConAgra Foods, 

301 Neb. 38, 65, 917 N.W.2d 435, 458 (2018) (“[c]ircumstantial evidence is not inherently less probative than direct 

evidence, and a fact proved by circumstantial evidence is 

nonetheless a proven fact”), citing State v. Pierce, 248 Neb. 

536, 537 N.W.2d 323 (1995); Carpenter v. Cullan, 254 Neb. 

925, 937, 581 N.W.2d 72, 80 (1998) (“‘“[n]egligence, like any 

other fact, may be proved by circumstantial evidence . . .”’”), 

quoting McVaney v. Baird, Holm, McEachen, 237 Neb. 451, 

466 N.W.2d 499 (1991).

Moreover, we agree with the district court that evidence 

of Albert’s loss of consciousness did not invite the jury to 

speculate:

The admission of this evidence does not permit the 

jury to improperly speculate as to causation. [Albert’s] 

medical condition is one of many facts and inferences the 

jury is allowed to consider when determining causation. 

The doctor’s testimony regarding his medical condition 

prior to the accident is not speculative. It is based on 

information these experts had direct knowledge of, is 
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reliable and can be presented as circumstantial evidence 

by [Beverly] to prove loss of consciousness.

Although the evidence presented by Beverly that Albert had 

lost consciousness prior to his truck’s entering the oncoming 

traffic lane and colliding with the school van was circumstantial, we find that based upon all of the evidence presented at 

trial, a jury could reasonably find that the collision was the 

direct result of Albert’s loss of consciousness. We now turn 

to our analysis of whether Albert’s loss of consciousness 

was foreseeable.

[12] Even assuming that Albert suffered a sudden loss of 

consciousness prior to the accident, we must examine the 

record to determine whether such a loss was foreseeable. In 

establishing the loss of consciousness defense, the issue of 

foreseeability is crucial. The defense is not available where a 

driver was put on notice of facts sufficient to cause an ordinary and reasonable person to anticipate that his or her driving 

might likely lead to injury to others. Storjohn v. Fay, 246 Neb. 

454, 519 N.W.2d 521 (1994).

In this case, both McGowan and Mahoney testified that the 

majority of people who suffer from sudden cardiac death have 

no prior symptoms and no prior warning of their impending 

heart condition. Mahoney explained that most people who suffer from sudden cardiac death are “perfect one second” and 

then “the next second they collapse.” In addition, McGowan 

testified that given his understanding of Albert’s heart problems prior to the collision, he never advised Albert not to 

drive a vehicle. The Christensens did not offer any evidence 

to directly counter the expert testimony that Albert’s sudden 

loss of consciousness was not foreseeable. However, on appeal, 

they point to Albert’s extensive heart problems in the years 

prior to the collision in arguing that Albert must have known 

that he could experience another heart problem while driving. There is nothing in the record, however, to suggest that 

Albert’s known heart problems had ever affected his ability to 

drive or had ever caused him to lose consciousness. Rather, 
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Albert described his principal symptoms as fatigue and shortness of breath.

Given all of the evidence presented at the trial, we cannot 

say that the district court erred in instructing the jury on the 

loss of consciousness defense. Beverly presented sufficient 

evidence for a reasonable jury to conclude that Albert lost 

consciousness prior to the collision, including expert medical 

testimony, eyewitness testimony from John and Lavera, and 

the results of the accident investigation. In addition, Beverly 

presented sufficient evidence for a reasonable jury to conclude 

that Albert’s sudden loss of consciousness was not foreseeable. 

The decision of the district court in this regard is affirmed. The 

jury instruction regarding the loss of consciousness defense 

correctly stated the law and was adequately supported by the 

pleadings and the evidence.

VI. CONCLUSION

We conclude that the district court did not err in permitting expert medical testimony that Albert was at a high risk 

of suffering from sudden cardiac death or in instructing the 

jury on the sudden loss of consciousness defense. Accordingly, 

we affirm.

Affirmed.