By Gary J. Chester, Senior Writer
The NCAA is facing hundreds of lawsuits from former college football players who claim their concussions were mistreated, leading to a variety of medical conditions ranging from persistent headaches to early onset Alzheimer’s Disease. There will be more concussion lawsuits to come and some of them will involve concussions suffered in high school football.
Concussion claims are not simple, starting with the issue of proximate cause. Attorneys who handle these cases need to learn some of the pitfalls. A basic auto accident case out of Nebraska, Yagodinski v. Sutton, 309 Neb. 179 (2021), serves as a reminder that choosing a medical witness with expertise in diagnosing brain conditions is critical to success.
In 2011, Gina Yagodinski’s vehicle was struck from behind by a vehicle operated by Brad Sutton. Yagodinski filed a negligence claim in Nebraska state court seeking compensatory damages for injuries to her spine and head. More than five years after the accident, Dr. John McClaren, a licensed chiropractor, examined the plaintiff and diagnosed her with “vestibular post-concussive syndrome.” He opined that Yagodinski suffered a mild traumatic brain injury in the collision.
The defense brought a pre-trial motion to exclude McClaren’s testimony on the grounds that it was beyond the scope of chiropractic expertise. In oral argument, the plaintiff offered evidence that McClaren received education and training in the diagnosis of traumatic brain injury and that he represents himself as a “chiropractic neurologist.” The gist of the plaintiff’s argument was that McClaren’s status as a chiropractor, as opposed to a medical doctor, should go the weight of his testimony and not to whether it should be admitted at trial.
The defense offered evidence from a licensed medical neurologist that McClaren’s methods of diagnosing traumatic brain injury were not generally accepted by medical neurologists.
The trial court ruled that McClaren was qualified to testify on matters within the scope of his chiropractic license, but not about the diagnosis and treatment of traumatic brain injuries because such injuries were “outside the scope of chiropractic care in Nebraska.” The trial judge looked to applicable Nebraska statutes governing chiropractic practice in rendering the decision.
At trial, McClaren opined to a reasonable degree of chiropractic certainty that Yagodinski sustained cervical whiplash injuries as a result of the collision and that her residual symptoms were permanent. After McClaren testified, the plaintiff made an offer of proof outside the presence of the jury and the judge that sought to permit McClaren to testify that Yagodinski sustained a traumatic brain injury. The defendant offered exhibits in opposition. There was no record of the judge ruling on the plaintiff’s offer of proof.
Dr. Joel Cotton, a board-certified neurologist, testified for Sutton. Dr. Cotton said he reviewed the plaintiff’s medical records and that Yagodinski experienced a “temporary cervical sprain or strain” from the collision, but she did not suffer any permanent injury.
The jury returned a verdict of $5,000 for Yagodinski and she appealed, asserting that the trial judge committed reversible error in excluding McClaren’s testimony regarding traumatic brain injury.
The appellate court remanded the case back to the trial judge and ordered him to determine once again if McClaren qualified as an expert and if the excluded testimony was scientifically valid and reliable under the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Schafersman v. Agland Coop., 262 Neb. 215 (2001).
On remand, the trial judge reviewed numerous documents, including those indicating that McClaren obtained a certification in 2005 through the American Chiropractic Neurology Board and later performed clinical rounds at the Carrick Brain Center and completed a 375-hour fellowship degree in “Brain Injury and Rehabilitation” from the American Board of Brain Injury and Rehabilitation.
The defense offered an affidavit from Cotton and portions of his deposition testimony asserting that McClaren’s tests and conclusions were unreliable and that Yagodinski’s treatment records did not state or suggest that she sustained a traumatic brain injury in the accident.
The trial court ruled for the defendant and Yagodinski again appealed.
On the second appeal, the state’s highest court considered Nebraska’s Chiropractic Practice Act which broadly defines chiropractic, in part, as the “diagnosis and analysis of the living human body for the purpose of detecting ailments, disorders, and disease by the use of diagnostic[s]…” Considering this statute alone would seem to favor the plaintiff, but the court went further.
The court also considered the state Medicine and Surgery Practice Act which limits the diagnostic methods and treatments that chiropractors can use. Chiropractors can only use X-rays, physical and clinical examinations, and routine procedures such as urinalysis. They can only diagnose disorders linked to interference with nerve energy in the body.
The Nebraska Supreme Court ruled that the trial court properly looked to Nebraska statutes to determine the scope of accepted chiropractic practice there and it did not abuse its discretion in excluding McClaren’s testimony because his diagnostic methods fell outside the scope of that practice. The court reasoned that the optical tests and other diagnostic tools that McClaren used were neither authorized by chiropractic law in Nebraska nor used for the purpose of determining if Yagodinski was a candidate for chiropractic care.
In affirming the trial judge, the court rejected the plaintiff’s argument that McClaren had over 600 hours of education and training focused on traumatic brain injury, and he had used the same medical texts as utilized in medical schools. The court countered that the argument “rests on the faulty assumption that the scope of chiropractic practice in Nebraska is something a chiropractor can expand through additional education and training.”
Some thoughts upon reflection of this case:
- Would McClaren’s additional testimony have mattered? The jury apparently found the credibility of both Yagodinski and McClaren to be wanting, given the very modest verdict of $5,000. The jury clearly accepted Dr. Cotton’s opinion that Yagodinski’s injuries were resolved.
- Why did the State of Nebraska permit McClaren to log clinical hours in traumatic brain injury treatment if the state prohibits chiropractors from treating brain injuries?
- The decision highlights the danger of choosing an expert to issue a medical diagnosis that none of the treating physicians have provided. That was enough of a stretch without trying to expand the expert’s credentials as well.
- McClaren would have been subjected to sharp cross-examination on his brain injury bona fides, which were certainly less impressive than that of Cotton, a medical neurologist. The case is a lesson in choosing an expert with impeccable credentials.