- 571 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

Rosa Gonzales and Javier Rojas, individually 

and as parents and next friends of Joaquin 

Rojas, a minor, appellants, v. Nebraska 

Pediatric Practice, Inc., and Corey 

S. Joekel, M.D., appellees.

___ N.W.2d ___

Filed March 5, 2021. No. S-20-253.

1. Courts: Expert Witnesses. A trial court acts as a gatekeeper to ensure 

the evidentiary relevance and reliability of an expert’s opinion.

2. ____: ____. An evaluation under Schafersman v. Agland Coop, 262 Neb. 

215, 631 N.W.2d 862 (2001), generally consists of four factors, including a determination of (1) whether the witness is qualified to testify as 

an expert, (2) whether the witness’ testimony is supported by scientifically valid and reliable methodology or reasoning, (3) whether the reasoning or methodology has been properly applied to the facts in issue, 

and (4) whether the testimony’s probative value is not substantially 

outweighed by danger of unfair prejudice.

3. Judgments: Appeal and Error. For purposes of a law-of-the-case 

analysis, construction of an appellate court’s prior opinion is determined 

by an appellate court as a matter of law.

4. ____: ____. An appellate court reviews matters of law de novo, independently of the lower court’s determination.

5. Summary Judgment: Appeal and Error. An appellate court reviews 

a grant of summary judgment de novo, viewing the record in the light 

most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor.

6. ____: ____. An appellate court affirms a grant of summary judgment if 

the pleadings and admitted evidence show that there is no genuine issue 

as to any material facts or as to the ultimate inferences that may be 

drawn from the facts and that the moving party is entitled to judgment 

as a matter of law.

Nebraska Supreme Court Online Library

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

04/16/2021 08:08 AM CDT
- 572 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

7. Actions: Appeal and Error. Law of the case is a procedural doctrine 

that bars reconsideration of the same or similar issues at successive 

stages of the same suit or prosecution.

8. ____: ____. The law-of-the-case doctrine reflects the principle that to 

promote finality and to protect parties’ settled expectations, an issue litigated and terminally decided in one stage of a case should not be later 

resuscitated at a later stage.

9. Appeal and Error. Under the law-of-the-case doctrine, the holdings of 

an appellate court on questions presented to it for review become the 

law of the case.

10. ____. Under the law-of-the-case doctrine, unless the facts presented on 

remand are shown by the petitioner to be materially and substantially 

different, an appellate court’s prior holdings conclusively settle all matters ruled upon, either expressly or by necessary implication.

11. Pretrial Procedure: Expert Witnesses. An objection under Schafersman 

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

form of a concise pretrial motion.

12. ____: ____. In terms of the factors under Schafersman v. Agland Coop, 

262 Neb. 215, 631 N.W.2d 862 (2001), a motion to exclude should identify what is believed to be lacking with respect to the expert testimony 

at issue.

13. ____: ____. A motion to exclude expert testimony should be stated with 

enough specificity as to a particular factor that the court understands 

what is being challenged and can accordingly determine the necessity 

and extent of any pretrial proceedings.

14. Expert Witnesses: Proof. It is the objecting party’s burden to raise an 

adequately specific objection to expert testimony.

15. Expert Witnesses: Waiver. A failure to make an adequately specific 

objection to expert testimony will result in a waiver of the right to object 

on that basis.

16. Appeal and Error. For purposes of a law-of-the-case analysis, it is 

enough for an appellate court to recognize the scope of issues conclusively settled in the appellate court’s prior opinion.

17. ____. An appellate court interprets the scope of an appellate court’s 

prior opinion as a matter of law without regard to the parties’ or even 

the prior appellate court’s subjective interpretations.

18. ____. An appellate court is not obligated to engage in an analysis that is 

not necessary to adjudicate the case and controversy before it.

Appeal from the District Court for Douglas County: James 

T. Gleason, Judge. Reversed and remanded for further 

proceedings.
- 573 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

Greg Garland, of Garland Medmal, L.L.C., Tara DeCamp, 

of DeCamp Law, P.C., L.L.O., and Kathy Pate Knickrehm 

for appellants.

Sarah M. Dempsey, Patrick G. Vipond, and Michael L. 

Storey, of Lamson, Dugan & Murray, L.L.P., for appellees.

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

Papik, and Freudenberg, JJ.

Heavican, C.J.

I. INTRODUCTION

Appellants Rosa Gonzales and Javier Rojas are the parents 

of Joaquin Rojas, a minor who suffered a brain injury. Alleging 

that Joaquin’s brain injury was caused by Dr. Corey Joekel, 

M.D., when he misdiagnosed and failed to treat Joaquin’s condition, appellants brought a malpractice action against appellees Joekel and his employer, Nebraska Pediatric Practice, Inc.

Based on appellees’ objection, the district court found the 

expert testimony of appellants’ key witness inadmissible. After 

excluding that testimony, the district court granted summary 

judgment to appellees.

For the reasons set forth herein, we reverse the district 

court’s order granting summary judgment and remand the cause 

for further proceedings consistent with this opinion.

II. BACKGROUND

1. Complaint

On August 5, 2012, Joaquin, who was then 5 years old, was 

exhibiting symptoms consistent with mononucleosis, a common condition frequently caused by the Epstein-Barr virus 

(EBV). Gonzales brought Joaquin to the emergency department at Children’s Hospital and Medical Center (CHMC) in 

Omaha, Nebraska. After an examination, an emergency department physician diagnosed Joaquin with mononucleosis and 

discharged him.

Over the next 2 days, Joaquin continued to exhibit many 

of the same symptoms. Concerned that some of Joaquin’s 
- 574 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

symptoms might be worsening, Gonzales returned Joaquin to 

the emergency department at CHMC the morning of August 7, 

2012. Joekel, the attending emergency department physician, 

examined Joaquin and diagnosed him with mononucleosis. 

Joekel ordered Joaquin discharged at 8:44 a.m.

Approximately 31⁄2 hours later, Joaquin began to seize. 

Gonzales called the 911 emergency dispatch system, and 

Joaquin was transported by ambulance to the University of 

Nebraska Medical Center (UNMC) in Omaha. At 12:39 p.m., 

Joaquin was admitted to the emergency department at UNMC. 

He was unresponsive and exhibiting decreased respirations. 

After UNMC staff administered antiepileptic medication, 

Joaquin began to gradually regain consciousness. Joaquin was 

diagnosed with EBV meningoencephalitis, a serious infection 

of the brain and surrounding tissue that can arise as a complication of mononucleosis.

Joaquin also experienced brain swelling and oxygen loss. 

On August 10, 2012, surgeons at UNMC performed a decompressive craniectomy, removing sections of Joaquin’s skull 

to relieve pressure on his brain. On September 5, UNMC 

surgeons performed a cranioplasty to replace the sections of 

Joaquin’s skull that they had removed.

On September 10, 2012, Joaquin was transferred to a rehabilitation center for physical and speech therapy. He was 

discharged home on October 13. Joaquin’s parents allege that 

when Joaquin then attended school, he displayed symptoms 

of a brain injury, including learning deficits that required his 

placement in special education classes.

On August 1, 2014, appellants filed a complaint in the 

district court for Douglas County, asserting that Joaquin’s 

injuries were attributable to Joekel’s professional negligence. 

On behalf of themselves and Joaquin, appellants sought damages from appellees under the Nebraska Hospital-Medical 

Liability Act. 1

1 Neb. Rev. Stat. §§ 44-2801 to 44-2855 (Reissue 2010).
- 575 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

2. First Appeal

As the case progressed toward trial, a dispute arose concerning the admissibility of certain expert testimony. Pursuant to 

Neb. Rev. Stat. § 27-702 (Reissue 2016), appellants moved 

to admit the testimony of Dr. Todd Lawrence, a family and 

emergency room physician, “on all elements of proof required 

to prove a prima facie case of medical malpractice.” Lawrence 

planned to opine that Joaquin’s medical outcome would have 

been better if, on August 7, 2012, Joekel would not have misdiagnosed Joaquin and failed to admit him for further treatment 

at CHMC.

Appellees moved to prevent Lawrence from testifying to 

this opinion. Their basis for objecting to Lawrence’s testimony 

was, in part, Schafersman v. Agland Coop (Schafersman I ), 2 the 

case in which we adopted the framework set forth in Daubert 

v. Merrell Dow Pharmaceuticals, Inc.,

 3 and its progeny 4 for 

evaluating whether to admit expert testimony.

[1,2] Under our Schafersman I jurisprudence, the trial court 

acts as a gatekeeper to ensure the evidentiary relevance and 

reliability of an expert’s opinion. 5 A Schafersman I evaluation generally consists of four factors, including a determi

nation of (1) whether the witness is qualified to testify as an 

expert, (2) whether the witness’ testimony is supported by 

scientifically valid and reliable methodology or reasoning, 

(3) whether the reasoning or methodology has been properly 

applied to the facts in issue, and (4) whether the testimony’s 

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

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

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

4 See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 

143 L. Ed. 2d 238 (1999); General Electric Co. v. Joiner, 522 U.S. 136, 

118 S. Ct. 512, 139 L. Ed. 2d 508 (1997).

5 See Schafersman I, supra note 2. See, also, State v. Simmer, 304 Neb. 369, 

935 N.W.2d 167 (2019).
- 576 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

probative value is not substantially outweighed by danger of 

unfair prejudice. 6

Appellees also moved for summary judgment, claiming that 

without Lawrence’s testimony, appellants could not prove causation, an essential element in a medical malpractice case. 7

After an evidentiary hearing, the district court agreed with 

appellees that Lawrence’s testimony was inadmissible. The 

court excluded the testimony on two bases: first, that under 

Schafersman I, Lawrence was unqualified to testify about causation as an expert; and second, that under our line of cases 

concerning the relevance of expert testimony, 8 Lawrence’s 

opinions amounted to inadmissible loss-of-chance testimony. 

In a separate order, the district court granted appellees’ motion 

for summary judgment.

On the first appeal of this case, the Nebraska Court of 

Appeals affirmed in part, and in part reversed and remanded 

for further proceedings. 9 All three of the panel’s judges agreed 

that a portion of Lawrence’s opinions amounted to loss-ofchance testimony, “which, in Nebraska, is insufficient to establish causation.” 10

Yet as to the portion of Lawrence’s opinions that the court 

found was not loss-of-chance testimony, the panel divided 

on whether Lawrence was qualified to render such opinions. 

After a thorough analysis applying the relevant Schafersman I

factors, a majority of the Court of Appeals concluded that 

6 See Epp v. Lauby, 271 Neb. 640, 715 N.W.2d 501 (2006). See, also, 

Simmer, supra note 5.

7 See Ewers v. Saunders County, 298 Neb. 944, 906 N.W.2d 653 (2018).

8 See, e.g., Cohan v. Medical Imaging Consultants, 297 Neb. 111, 900 

N.W.2d 732 (2017), modified on denial of rehearing, 297 Neb. 568, 902 

N.W.2d 98; Richardson v. Children’s Hosp., 280 Neb. 396, 787 N.W.2d 

235 (2010); Rankin v. Stetson, 275 Neb. 775, 749 N.W.2d 460 (2008).

9 See Gonzales v. Nebraska Pediatric Practice, 26 Neb. App. 764, 923 

N.W.2d 445 (2019).

10 Id. at 786, 923 N.W.2d at 461.
- 577 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

Lawrence was qualified and that therefore, the district court 

had abused its discretion in excluding Lawrence’s testimony, 11

with one judge concurring in part, and in part dissenting. 12 The 

Court of Appeals then remanded the cause “for further proceedings in compliance with [its] opinion.” 13

3. Orders on Remand

On remand, appellees renewed their objection that 

Lawrence’s testimony was inadmissible under Schafersman I. 

They moved to amend the scheduling order to name an additional expert witness, Dr. Daniel Bonthius, a neurologist and 

pediatrician who specialized in viral encephalitis.

Then, supported by live video testimony from Bonthius, 

affidavits from two other physicians who specialized in pediatric epilepsy and infectious disease, and three articles from 

medical journals, appellees challenged Lawrence’s testimony 

under the second and third Schafersman I factors. To wit, 

appellees contended that Lawrence’s testimony would depend 

on invalid “methods or scientific knowledge” and would not 

properly apply valid methods or reasoning to the facts in 

issue. Further, on the condition that their motion to exclude 

Lawrence’s testimony was granted, appellees moved again for 

summary judgment.

At a hearing on appellees’ motions, appellants objected 

to the form of Bonthius’ testimony. But because appellees 

had provided nearly 4 months’ notice of their intent to offer 

Bonthius’ testimony by live video, and because appellants 

had only begun objecting to Bonthius’ testimony in that form 

on the day before the hearing, the district court concluded 

that appellants had “implicitly agreed” to such testimony 

by their conduct. The district court thus received Bonthius’ 

11 See Gonzales, supra note 9.

12 But see id. (Bishop, Judge, concurring in part, and in part dissenting).

13 Id. at 799, 923 N.W.2d at 468.
- 578 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

testimony by live video pursuant to Neb. Rev. Stat. § 24-734(4) 

(Reissue 2016). 14

The district court then granted appellees’ motion to 

exclude Lawrence’s testimony from trial. Despite finding that 

Lawrence was qualified as a physician and entitled to give 

“medical opinions,” the district court found that his testimony 

“with regard to the causation of seizures and the extent and 

longevity thereof are not within his skill set and[,] based on 

the testimony of [Bonthius], are not consistent with current 

medical knowledge in the area.” Accordingly, the district 

court ordered that “causation opinions regarding any relationship between [EBV meningoencephalitis] and seizures offered 

by Dr. Lawrence must be stricken.” Because appellants’ argument for causation depended for support on Lawrence’s testimony, the district court also granted summary judgment 

to appellees.

Appellants filed a timely notice of appeal. 15 While the 

appeal was pending, appellees requested a supplemental bill 

of exceptions containing the records from two hearings. The 

court reporter averred that she was unable to produce a record 

for one of the hearings because no stenographic record had 

been made.

Appellees moved for an order nunc pro tunc to augment the 

bill of exceptions with an affidavit from their attorney that had 

allegedly been received at that hearing but not included in the 

record. Finding that the affidavit had been properly received 

as evidence but “inadverten[tly]” left out of the record due to 

“clerical error” by the court reporter, the district court granted 

appellees’ motion and ordered the affidavit included in the bill 

of exceptions.

We moved the appeal to our docket. 16

14 See, also, 2020 Neb. Laws, L.B. 912 (codified as § 24-734 (Cum. Supp. 

2020), amending § 24-734(4) after relevant time in this case).

15 See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020).

16 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
- 579 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

III. ASSIGNMENTS OF ERROR

Appellants assign three errors, which we restate as follows: (1) that the district court was precluded, under the law 

of the case, from excluding the testimony of their expert, 

Lawrence; (2) that the district court violated the law of the 

case, Schafersman I, and § 24-734(4) in admitting the testimony of appellees’ experts; and (3) that the district court erred 

in granting summary judgment.

IV. STANDARD OF REVIEW

[3,4] For purposes of a law-of-the-case analysis, construction of an appellate court’s prior opinion is determined by an 

appellate court as a matter of law. 17 An appellate court reviews 

matters of law de novo, independently of the lower court’s 

determination. 18

[5,6] An appellate court reviews a grant of summary judgment de novo, viewing the record in the light most favorable 

to the nonmoving party and drawing all reasonable inferences 

in that party’s favor. 19 An appellate court affirms a grant of 

summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts 

and that the moving party is entitled to judgment as a matter 

of law. 20

V. ANALYSIS

1. Preclusion Under Law of Case

We begin our analysis by considering the district court’s 

decision to exclude Lawrence’s testimony. Appellants contend 

that the Court of Appeals’ earlier opinion in this case conclusively settled that Lawrence’s testimony was admissible. 

17 See TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493, 941 

N.W.2d 145 (2020).

18 See id.

19 Kaiser v. Allstate Indemnity Co., 307 Neb. 562, 949 N.W.2d 787 (2020).

20 Id.
- 580 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

Thus, they allege, the law of the case precluded appellees’ 

renewed Schafersman I objection on remand to Lawrence’s 

testimony.

[7,8] Law of the case is a procedural doctrine that bars 

reconsideration of the same or similar issues at successive 

stages of the same suit or prosecution. 21 The doctrine reflects 

the principle that to promote finality and to protect parties’ 

settled expectations, an issue litigated and terminally decided 

in one stage of a case should not be later resuscitated at a 

later stage. 22

[9,10] Under the law-of-the-case doctrine, the holdings of an 

appellate court on questions presented to it for review become 

the law of the case. 23 Thereafter, unless the facts presented on 

remand are shown by the petitioner to be materially and substantially different, the appellate court’s holdings conclusively 

settle all matters ruled upon, either expressly or by necessary implication. 24

Here, we agree with appellants that the admissibility of 

Lawrence’s testimony was conclusively settled by the Court 

of Appeals and that therefore, appellees’ renewed objection on remand to that testimony was precluded. Among the 

questions presented to the Court of Appeals for review were 

whether Lawrence’s opinions had met the requirements for 

reliability and relevance under Schafersman I to be admissible as expert testimony “on the subject of causation of 

Joaquin’s injuries.” 25

After thoroughly analyzing Lawrence’s testimony against 

the relevant factors, the Court of Appeals answered in 

the affirmative:

21 See State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020).

22 See Parks v. Hy-Vee, 307 Neb. 927, 951 N.W.2d 504 (2020). See, also, 

State v. Thompson, 69 Neb. 157, 95 N.W. 47 (1903).

23 See Price, supra note 21.

24 See id. See, also, Carpenter v. Cullan, 254 Neb. 925, 581 N.W.2d 72 

(1998).

25 Gonzales, supra note 9, 26 Neb. App. at 783, 923 N.W.2d at 460.
- 581 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

Dr. Lawrence clearly possesses special knowledge 

respecting the causation of brain injury and scarring from 

seizures superior to that of persons in general as to make 

his formation of a judgment a fact of probative value. . 

. . If [a]ppellees have more specialized experts and evidence to attack Dr. Lawrence’s conclusions, [a]ppellees 

remain capable of cross-examining Dr. Lawrence and 

bringing their own experts and evidence to counter his 

opinions. However, this becomes a question of fact for 

the fact finder. 26

Thus, the Court of Appeals held that the district court had 

“abused its discretion in determining that Dr. Lawrence was 

unqualified under § 27-702 to testify on causation as to the 

injuries Joaquin suffered due to Dr. Joekel’s failure to hospitalize, treat, and control Joaquin’s seizure, the sole causation 

opinion offered by Dr. Lawrence . . . .” 27

That holding by the Court of Appeals established the law 

of the case. It conclusively settled that under Schafersman I, 

Lawrence’s testimony was admissible to prove causation in 

this case.

Because Bonthius’ testimony is nothing more than a new 

opinion concerning facts that already existed before remand, 

it does not qualify as a material and substantial difference 

in the facts underlying the Court of Appeals’ decision such 

that it should displace the application of the law-of-the-case 

doctrine. 28 And unlike expert testimony in a retrial, which we 

have said is not necessarily precluded by foundational challenges raised before, 29 Lawrence’s opinions on remand are 

essentially the same as those the Court of Appeals considered previously. At the least, appellees have failed to show 

26 Id. at 794, 923 N.W.2d at 465-66.

27 Id. at 795, 923 N.W.2d at 466.

28 See Talle v. Nebraska Dept. of Soc. Servs., 253 Neb. 823, 572 N.W.2d 790 

(1998).

29 See State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006).
- 582 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

a material and substantial difference. 30 Therefore, under the 

Court of Appeals’ opinion, appellees were precluded from 

renewing, on remand, their Schafersman I-based objections to 

Lawrence’s testimony.

Appellees urge us to parse the scope of the Court of Appeals’ 

opinion more narrowly. By appellees’ reading, the opinion 

settled only one issue under Schafersman I—Lawrence’s qualifications—and did not reach the separate Schafersman I issues 

of whether Lawrence’s testimony was supported by scientifically valid methodology and whether it properly applied such 

methodology to the facts in issue.

Appellees cite language in the Court of Appeals’ opinion 

that they claim “invited” objections based on these grounds 

after remand. 31 The Court of Appeals stated:

[W]e express no opinion as to whether [Dr. Lawrence’s] 

theory or methodology supporting the opinion are valid, 

whether the theory or methodology were properly applied 

to the facts in this case, or whether Dr. Lawrence’s testimony is more probative or prejudicial. To the extent 

[a]ppellees were challenging those factors, those components of the Daubert/Schafersman analysis were not 

addressed by the district court in its order. 32

But while we agree that by its express acknowledgment 

the Court of Appeals elected not to separately analyze those 

Schafersman I factors, we disagree that the factors remained 

subject to challenge on remand.

[11-15] As the Court of Appeals noted elsewhere in its opinion, a Schafersman I objection must take the form of a concise 

pretrial motion. 33 Such motion should identify, in terms of the 

Schafersman I factors, what is believed to be lacking with 

30 See Carpenter, supra note 24.

31 Brief for appellees at 27.

32 Gonzales, supra note 9, 26 Neb. App. at 795, 923 N.W.2d at 466.

33 See Gonzales, supra note 9. See, also, Simmer, supra note 5.
- 583 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

respect to the expert testimony at issue. 34 It should be stated 

with enough specificity as to a particular factor that the court 

understands what is being challenged and can accordingly 

determine the necessity and extent of any pretrial proceedings. 35 It is the objecting party’s burden to raise an adequately 

specific objection to expert testimony. 36 Because this specificity requirement is necessary to protect judicial economy and 

resources, 37 a failure to make an adequately specific objection 

to expert testimony will result in a waiver of the right to challenge that factor. 38

Considering this established waiver rule, we are satisfied 

that it explains why the Court of Appeals declined to separately 

analyze the Schafersman I factors raised in appellees’ renewed 

objection on remand. 39 After stating the waiver rule, the Court 

of Appeals found:

It is unclear from the record whether [a]ppellees’ 

[Schafersman I] challenge to Dr. Lawrence was limited 

to his qualifications to testify or whether [a]ppellees were 

extending their challenge to his theory or methodology 

and/or his application of the facts to his theory or methodology. See brief for appellees at 28 (arguing that Dr. 

Lawrence’s opinions “were not sufficiently reliable”). We 

note the Nebraska Supreme Court’s admonition that a 

Daubert/Schafersman challenge should specifically identify which of the factors is believed to be lacking. We 

also note this record is somewhat devoid of analysis as it 

relates to those other specific factors. 40

34 See Simmer, supra note 5.

35 See In re Interest of Christopher T., 281 Neb. 1008, 801 N.W.2d 243 

(2011).

36 See id.

37 State v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014).

38 See, e.g., Simmer, supra note 5; In re Interest of Christopher T., supra

note 35.

39 Gonzales, supra note 9.

40 Id. at 789, 923 N.W.2d at 463.
- 584 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

By finding “unclear” appellees’ other Schafersman I-based 

objections in the record, the Court of Appeals determined that 

the objections had not been raised with adequate specificity. 41

According to the Court of Appeals, appellees’ passing characterization of Lawrence’s testimony as “‘not sufficiently reliable’” was not an adequately specific objection. 42 We thus read 

the Court of Appeals’ opinion as deciding that to the extent 

appellees had wished to challenge Lawrence’s testimony on 

Schafersman I grounds beyond his alleged lack of qualifications, they had waived those challenges.

[16,17] We do not judge the merits of that decision here, 

because for purposes of our law-of-the-case analysis, it is 

enough for us to recognize the scope of issues conclusively 

settled in the Court of Appeals’ opinion. 43 We interpret its 

scope as a matter of law without regard to the parties’ or even 

the Court of Appeals’ subjective interpretations. 44 It is that de 

novo interpretation of the opinion that leads us to conclude the 

Court of Appeals applied our waiver rule, thus precluding further challenges to Lawrence’s testimony based not only on his 

qualifications but also on all other Schafersman I factors.

Our waiver rule may not have been the Court of Appeals’ 

only justification for declining to analyze the Schafersman I

factors raised in appellees’ renewed objection on remand. The 

Court of Appeals also noted that under principles of judicial 

restraint, it could avoid analyzing those factors because the 

district court had not analyzed them, grounding its decision 

instead “solely on the basis of [Lawrence’s] qualification to 

give such opinion.” 45

But regardless of how many justifications the Court 

of Appeals had for not analyzing the Schafersman I factors 

41 See id.

42 See id.

43 See Price, supra note 21.

44 See, Bayne v. Bayne, 302 Neb. 858, 925 N.W.2d 687 (2019). See, also, 

Kerndt v. Ronan, 236 Neb. 26, 458 N.W.2d 466 (1990).

45 Gonzales, supra note 9, 26 Neb. App. at 789, 923 N.W.2d at 463.
- 585 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

raised in appellees’ renewed objection on remand, what matters 

now is our finding that the waiver rule was among those justifications. By determining that appellees’ qualification-based 

objection lacked merit, in part, and that their other Schafersman I

objections had been waived, the Court of Appeals conclusively settled all of appellees’ potential Schafersman I-based 

objections to Lawrence’s testimony.

We consequently disagree with appellees’ parsing of the 

Court of Appeals’ opinion. Contrary to appellees’ interpretation, 

the opinion was not an invitation to relitigate the admissibility 

of Lawrence’s testimony. Nor was appellees’ renewed objection fair game on remand. Under our de novo interpretation, 

the Court of Appeals’ opinion ended the parties’ pretrial dispute 

concerning the admissibility of Lawrence’s testimony.

As the Court of Appeals observed, “[i]f [a]ppellees have 

more specialized experts and evidence to attack Dr. Lawrence’s 

conclusions, [a]ppellees remain capable [at trial] of crossexamining Dr. Lawrence and bringing their own experts and 

evidence to counter his opinions.” 46 But for purposes of this 

Schafersman I motion to exclude, appellees’ renewed objection 

on remand to Lawrence’s testimony was precluded under the 

law of the case.

Consistent with appellants’ first assignment of error, we find 

that the district court’s order excluding Lawrence’s testimony 

was in error.

2. Summary Judgment

Appellants also raise various arguments for why the district 

court erred in admitting the testimony of appellees’ experts.

[18] We need not reach those arguments here because an 

appellate court is not obligated to engage in an analysis that 

is not necessary to adjudicate the case and controversy before 

it. 47 Summary judgment in this case depended on appellants’ 

46 Id. at 794, 923 N.W.2d at 466.

47 See George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947 

N.W.2d 510 (2020).
- 586 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GONZALES v. NEBRASKA PEDIATRIC PRACTICE

Cite as 308 Neb. 571

failure to raise a genuine dispute as to the causation of 

Joaquin’s injury, an essential element of their medical malpractice claim. 48 But because we reverse the order excluding 

Lawrence’s testimony, that testimony is properly in the record 

and raises a genuine dispute about causation, regardless of 

appellees’ evidence. Summary judgment was unwarranted.

VI. CONCLUSION

The district court’s order excluding Lawrence’s testimony 

was in error. We reverse the district court’s grant of summary judgment and remand the cause for further proceedings 

consistent with this opinion.

Reversed and remanded for 

further proceedings.

48 See Ewers, supra note 7.