Medical malpractice litigation in Nebraska requires careful adherence to the state’s locality rule when presenting expert testimony. The Nebraska Supreme Court’s decision in Carson v. Steinke, 314 Neb. 140 (2023), reinforces the strict requirements for expert witness admissibility and emphasizes the necessity of establishing familiarity with the defendant’s medical community or a similar locality. This case serves as a cautionary tale for plaintiffs who fail to properly prepare their expert witnesses.

At Watson & Carroll, we understand the complexities of medical malpractice litigation and the importance of meeting Nebraska’s strict evidentiary standards. This blog post outlines key takeaways from Carson v. Steinke and best practices for ensuring expert testimony is admissible in Nebraska medical malpractice cases.

1. The Locality Rule Remains a Strict Standard

Under Nebraska law, expert witnesses must be familiar with the standard of care in the defendant’s or a similar locality. The Nebraska Supreme Court reaffirmed that expert testimony must be based on specific knowledge of the relevant medical community, stating:

“Expert testimony offered to establish the standard of care in a medical malpractice case is admissible only if its proponent can demonstrate the expert’s familiarity with the relevant standard of care in the defendant’s community or a similar community.” (Carson v. Steinke, 314 Neb. at 152).

The court also held that an expert who is unfamiliar with the defendant’s locality or a medically similar community cannot rely on a generalized national standard unless they provide evidence that the local standard does not differ.

“Expert testimony establishing a national standard of care is admissible if the expert can establish that the national standard of care does not differ in the defendant’s community or a similar community.” (Id. at 142, 157).

Key Takeaways:

• An expert cannot assume that a national standard of care applies unless they can explicitly establish that the local standard does not differ from the national standard.
• It is not enough for an expert to testify generally about medical care; they must provide specific knowledge of the defendant’s medical community or a comparable one.
• The court will scrutinize whether an expert has done independent research or has direct experience in the locality in question.

2. Establishing a Similar Locality Requires Specific Evidence

Merely asserting that two communities are similar is insufficient. Instead, courts will analyze medically relevant factors such as available facilities, personnel, equipment, and practices. The Nebraska Supreme Court clarified that:

“The burden is on the proponent of standard-of-care testimony to demonstrate that the expert is familiar with the customary practice among physicians in the defendant’s community or a community that is similar in terms of available resources, facilities, personnel, practices, and other medically relevant factors.” (Id. at 156).

In Carson, the plaintiff’s expert failed to conduct any research or demonstrate specific knowledge of the resources and medical practices in Grand Island, Nebraska. As a result, his testimony was excluded. The court emphasized that:

“Given the lack of testimony establishing the available resources, personnel, and facilities in both Grand Island and Cedar Rapids, the district court did not abuse its discretion by determining that the Carsons failed to show that Grand Island and Cedar Rapids are similar.” (Id. at 159).

Best Practices:

1. If your expert has not practiced in the defendant’s community, they must demonstrate familiarity with a comparable community.
2. Experts should conduct research, review hospital policies, and consult with local practitioners to establish a credible foundation for their testimony.
3. Courts consider medically relevant factors such as available medical facilities, personnel, services, and technology when determining whether two communities are similar.

3. Speculative or Conclusory Testimony Will Be Excluded

In addition to locality concerns, the court reaffirmed that expert opinions on causation must be stated with reasonable medical certainty. Testimony based on speculation or possibility is not sufficient:

“Medical expert testimony regarding causation based upon possibility or speculation is insufficient; it must be stated as being at least ‘probable,’ in other words, more likely than not.” (Id. at 163).

In Carson, the plaintiff’s expert stated that the child “would have been better off” if a C-section had been performed earlier but admitted she had no scientific basis for that conclusion. The court held that this type of testimony does not meet the legal standard for causation:

“Even assuming that Elmore’s clinical basis meets the requisite degree of medical certainty, an opinion that Boston would have been ‘better off’ is not sufficiently definite, because this opinion was never connected to any actual injury.” (Id. at 165).

How to Avoid This Pitfall:

1. Ensure your expert can provide a clear, fact-based comparison between the defendant’s locality and any proposed similar locality.
2. Causation testimony must be stated in terms of probability, not possibility. Nebraska law requires medical causation to be established as “more likely than not.”
3. Experts should avoid vague phrases such as “the patient may have been harmed” and instead use definitive statements supported by medical literature and experience.

4. Pretrial Motions Are Essential to Establish Expert Qualifications

Given Nebraska’s stringent locality rule, attorneys should anticipate challenges to expert testimony and file pretrial motions to establish an expert’s qualifications. The court emphasized the importance of expert testimony disclosure:

“An important aspect of each party’s trial preparation is the discovery of the opinions that the opposing party’s expert witness will state at trial. Pretrial discovery enables litigants to prepare for trial without the element of an opponent’s tactical surprise.” (Id. at 160-161).

Given Nebraska’s stringent locality rule, attorneys should anticipate challenges to expert testimony and be proactive in filing motions in limine to establish an expert’s qualifications.

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 Carson v. Steinke decision underscores Nebraska’s strict adherence to the locality rule and the necessity of properly preparing expert testimony in medical malpractice cases. Plaintiffs must ensure that their experts can demonstrate familiarity with the defendant’s medical community or a similar locality, avoid speculative testimony, and provide clear causation opinions stated with medical probability.

At Watson & Carroll, we specialize in navigating Nebraska’s complex medical malpractice laws. If you are handling a malpractice case and need guidance on expert witness selection and admissibility or you have questions about a case or how Carson v. Steinke impacts your case, contact us at (402) 991-2100. We are here for you.