Medical malpractice litigation hinges on expert testimony. A plaintiff must establish three elements: the applicable standard of care, a breach of that standard, and causation linking the breach to the plaintiff’s harm. The Nebraska Supreme Court decision in Konsul v. Asensio, 316 Neb. 874 (2024), reinforces the challenges plaintiffs face when attempting to admit expert testimony on standard of care. This ruling highlights the strict application of Nebraska’s locality rule and the necessity of a proper foundation for expert witness admissibility.

At Watson & Carroll, we have extensive experience litigating medical malpractice claims, and Konsul v. Asensio serves as a critical reminder of the importance of properly preparing expert witnesses. In this blog post, we will break down best practices for ensuring expert testimony meets Nebraska’s stringent admissibility requirements.

1. Establish the Expert’s Familiarity with the Locality Rule

Under Nebraska law, an expert must demonstrate familiarity with the standard of care in the defendant’s locality or a similar community. Konsul reaffirmed that a national standard of care is not automatically admissible unless the expert can show that the national standard is identical to the local standard.

Key Takeaways:

  • Ensure your expert has reviewed and investigated the medical community in question, including available resources, facilities, personnel, and practices.
  • An expert cannot rely solely on medical records or generalized knowledge of a national standard.
  • If relying on a national standard, the expert must explicitly establish that the local standard does not deviate from it.

2. Avoid Speculative or Conclusory Testimony

The Nebraska Supreme Court emphasized that an expert must be able to provide a well-founded and accurate opinion, not mere speculation. In Konsul, the plaintiff’s expert was excluded because he lacked personal knowledge of Omaha’s medical community and could not substantiate that the standard of care he described applied locally.

Best Practices:

  1. Ensure the expert has concrete experience in a similar locality and can articulate why their expertise applies to the defendant’s community.
  2. Avoid speculative statements, opinions must be based on reliable methodologies and factual understanding of the locality.
  3. Strengthen foundation testimony by demonstrating the expert’s familiarity with relevant medical facilities, available technology, and professional expectations in the defendant’s practice area.

3. Lay the Proper Foundation for Standard of Care Testimony

The proponent bears the burden to establish the expert witness’s competency. In Konsul, the plaintiff failed to provide foundational testimony linking the expert’s knowledge to the Omaha medical community. Consequently, the expert was disqualified, and the case was dismissed via directed verdict.

What You Should Do:

  1. Prior to deposition or trial, have your expert review hospital policies, regional medical training standards, and state-specific medical board guidelines.
  2. Utilize supplemental experts who can validate the local standard of care.
  3. Conduct discovery to establish comparable communities that share similar resources and medical practices.

4. Prepare for Defense Challenges to Expert Testimony

Defense attorneys will aggressively challenge expert qualifications, particularly in cases relying on out-of-state professionals. Anticipate motions to exclude expert testimony based on:

  • Lack of familiarity with the local standard of care,
  • Failure to conduct independent research on the locality, and
  • Reliance on a national standard without proving local applicability.

5. Recommended Motion Strategy:

  1. File a motion before trial that outlines the expert’s qualifications and establishes how they meet the locality requirement.
  2. If using a national standard of care, the motion should include evidence that the local standard does not differ.
  3. Be prepared to defend your expert’s credentials and methodology against defense objections.

Conclusion

The Konsul v. Asensio decision underscores Nebraska’s strict adherence to the locality rule and the necessity of properly establishing expert witness qualifications. Plaintiffs must be meticulous in selecting, preparing, and defending expert testimony to ensure it withstands defense challenges.

At Watson & Carroll, we specialize in navigating the complexities of Nebraska medical malpractice law. If you are handling a medical negligence case and need guidance on expert witness selection and admissibility or have questions about a case or how Konsul v. Asensio impacts your case, contact us at (402) 991-2100. We are here for you.