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Case Summaries
Collateral Estoppel, Parties or Their Privities

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In this, the second of two 42-1983 actions brought against a Health and Human Services worker for actions, she took in obtaining the relinquishment of parental rights, by a father, the Nebraska Supreme Court finds that the doctrine of collateral estoppel applies. The Court found that the fathers prior case, in which the father showed that his Constitutional rights as a parent were violated, precludes relitigating the question of whether the daughters constitutional rights were likewise violated.

Amanda C. v. Case, 275 Neb. 757 (2008)

Supreme Court Headnotes

Summary Judgment.

1.  Summary judgment is proper if the pleadings and admis sible evidence offered at the hearing show that there is no genuine issue as to any material facts, or as to the ultimate inferences that may be drawn from those facts, and that the moving party is entitled to judgment as a matter of law. ••• In the summary judgment context, a fact is material only if it would affect the outcome of the case.

2.  Proof. A party makes a prima facie case that it is entitled to summary judgment by offering sufficient evidence that, assuming it went uncontested at trial, would entitle the party to a favorable verdict. ••• If the moving party makes a prima facie case that it is entitled to summary judgment, the burden then shifts to the nonmoving party to avoid sum mary judgment by producing admissible contradictory evidence which raises a genuine issue of material fact.

3.  Appeal and Error. In reviewing summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.

Judgments:

1.  Appeal and Error. On questions of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

2.  Collateral Estoppel. Under the doctrine of collateral estoppel, also known as issue preclusion, an issue of ultimate fact that was determined by a valid and final judgment cannot be litigated again between the same parties or their privities in any future lawsuit. ••• Collateral estoppel is applicable where (1) an identical issue was decided in a prior action, (2) the prior action resulted in a judgment on the merits which was final, (3) the party against whom the doctrine is to be applied was a party or was in privity with a party to the prior action, and (4) there was an opportunity to fully and fairly litigate the issue in the prior action.

Constitutional Law:

1.  Actions. A civil remedy is provided under 42 U.S.C. § 1983 (2000) for deprivations of federally protected rights, statutory or constitutional, caused by persons acting under color of state law. ••• In any 42 U.S.C. § 1983 (2000) action, the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) Whether the conduct complained of was committed by a person acting under color of state law and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.

2.  Parental Rights: Minors. Under the U.S. Supreme Court’s longstanding precedent, a parent has a constitutional right to retain custody and control of his or her child.

Due Process:

1.  Parental Rights:

     a.  Parent and Child. The substantive due process right to family integrity protects not only the parent’s right to companionship, care, custody, and management of his or her child, but also protects the child’s reciprocal right to be raised and nurtured by his or her biological parent.

     b.  Minors. Blood alone may not suffice to permit a parent to assert the due process right to custody and control of his or her child if the parent has altogether failed to shoulder the responsibilities inherent in the parenthood.

2.  Parent and Child. Both parents and their children have cognizable substantive due process rights to the parent child relationship. ••• The Due Process Clause would be offended if a state were to attempt to force the break up of a natural family without some showing of unfit ness and for the sole reason that to do so was thought to be in the children’s best interests. ••• Substantive due process rights between a parent and child do not arise simply by virtue of a genetic connection. Rather, they depend on a deeper, more enduring relationship.

Civil Rights:

1.  Public Officers and Employees: Immunity. Public officials who have been sued in their personal capacities under 42 U.S.C. § 1983 (2000) may invoke qualified immunity as a shield from liability if the official’s conduct does not violate clearly established statutory or constitutional rights of which a reason able person would have known.

Appeal and Error.

1.  An appellate court will not review errors that were not assigned and argued in a party’s brief.

Actions:

1.  Civil Rights:

     a.  Damages: Proof. To recover compensatory damages in a 42 U.S.C. § 1983 (2000) action, the claimant must show that the violation of his or her rights resulted in some actual harm.

     b.  Torts. Causation issues in 42 U.S.C. § 1983 (2000) actions are generally resolved according to common law tort principles.

Proximate Cause:

1.  Words and Phrases. As a general matter, a proximate cause is defined as that cause which, in a natural and continuous sequence, without any effi cient, intervening cause, produces the injury, and without which the injury would not have occurred.

2.  Proof. Ordinarily a plaintiff must meet three basic require ments in establishing proximate cause: (1) that without the misconduct, the injury would not have occurred, commonly known as the “but for” rule; (2) that the injury was a natural and probable result of the misconduct; and (3) that there was no efficient intervening cause.

Negligence:

1.  Proximate Cause: Proof. When multiple causes act to produce a single injury, any one of those acts can still qualify as a proximate cause of that harm so long as it was a substantial factor in bringing about the injury.

Date Filed and Case No.: May-23,-2008. No. S-06-1097.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/may/may23/s06-1097.pdf

Court Appealed From: District Court for Kimball County: Kristine R. Cecava, Judge.

Attorneys for the Appeal: Jon Bruning and Michael J. Rumbaugh for Kelly Case, appellant. Monte l. Neilan for Amanda C., by and through Gary Richmond, Natural Parent and Next Friend, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller Lerman, JJ.

Authored By: Heavican, C.J.

Summary: Gary Richmond and Carol C. are the biological parents of Amanda C. Carol suffered from a mental illness and while the married couple lived in Omaha, they relinquished their custodial rights to their first two children through the Nebraska Department of Health and Human Services (DHHS). When Carol became pregnant with Amanda, the couple moved from Omaha to Kimball, Nebraska, apparently to prevent DHHS from seizing Amanda at birth. Amanda was born on July 21, 1987.

     Five years later, a neighbor reported that Carol was abusing Amanda. No allegations of abuse were or have been made regarding Richmond. On July 23, 1993, the DHHS took Amanda into its custody. After a foster placement in Kimball, Carol still managed to abuse Amanda. On June 1, 1995, DHHS placed Amanda with her maternal grand father and step grandmother, Clyde and Connie C., in Omaha. Richmond did not have a friendly relationship with Clyde and Connie, was not consulted about this move and no arrangements were made to allow Richmond to have regular visitation. Once Amanda was relocated to Omaha, her visits with Richmond ceased.

     On September 4, 1996, the Kimball County Attorney filed a petition in the county court for Kimball County to terminate Richmond’s parental rights. An attorney was appointed to represent him, but meanwhile, DHHS representatives began contacting Richmond and asking him to voluntarily relinquish his parental rights. Richmond repeatedly refused these requests. On August 4, 1998, Kelly Case, a caseworker at DHHS, was assigned to Amanda’s file. As with prior caseworkers before her, Case wanted Richmond to relinquish his parental rights so that Amanda could be formally adopted by Clyde and Connie. Promises were made—though it is not clear whether by Case, Connie, or both—that an open adoption would be used. Notably, Case did not inform Richmond’s attorney, the Kimball County Attorney, Amanda’s guardian ad litem, or the county court about the efforts those efforts.

     When Case and Richmond met for a final time on August 25, 1998, Richmond relinquished his parental rights over Amanda. Case filed the documents with the county court.

     In 1999, Richmond sued Case (hereinafter, Richmond’s action) alleging that, among other things, Case engaged in the unauthorized practice of law—and thereby abused her authority as a DHHS employee—when she counseled Richmond about the legal benefits of relinquishing his parental rights. Richmond sought relief pursuant to 42 U.S.C. § 1983 (2000). A jury found in favor of Richmond on his § 1983 claim, but awarded him a mere $1 in compensatory damages. The jury did, however, award Richmond $65,000 in punitive damages. The relinquishment agreements were declared null and void by the court. Case appealed and while that appeal was pending, the parties agreed to a settlement.

     On May 20, 2004, less than a year later, Richmond filed another complaint against Case. This time, Richmond filed the complaint against Case in her personal capacity on behalf of his then minor daughter, Amanda (hereinafter Amanda’s action). Among other claims, the complaint alleged that Case’s misconduct had deprived Amanda of her substantive due process rights to a parent child relationship in violation of § 1983. The district court found that the judgment against Case in Richard’s action had a preclusive effect regarding Case’s misconduct in dealing with Richmond. The court concluded that such misconduct not only violated Richmond’s parental rights, but also violated Amanda’s substantive due process rights as a child. The court granted Amanda’s motion for summary judgment as to Case’s liability subsequently issued a judgment awarding Amanda $150,000 in damages. In its judgment, the court noted that sometime after the relinquishment, Amanda began to use drugs, ran away from (and refuses to return to) the home of Clyde and Connie, gave birth to a child out of wedlock, and appeared to be suffering financially. Case appealed and the Nebraska Supreme Court wrote the opinion.

Did the district court erroneously conclude that the judgment in Richmond’s prior action against Case had a preclusive effect regarding whether Case violated Amanda’s constitutional rights in Amanda’s case? The Court said that the only real question here was collateral estoppel, and whether Case’s interference with Richmond’s substantive due process rights regarding Amanda is identical to the underlying issue of whether Case interfered with Amanda’s substantive due process rights.

     Looking to a prior case, the court found it had already answered the question of whether a child has a constitutional right to be under the care, custody, and control of his or her parent In re Guardianship of D.J., 268 Neb. 239, 246, 682 N.W.2d 238, 244 (2004). In that case the Court observed that both “parents and their children have a recognized unique and legal interest in, and a constitutionally protected right to, companionship.” The substantive due process right to family integrity “protects not only the parent’s right to the companionship, care, custody, and management of his or her child, but also protects the child’s reciprocal right to be raised and nurtured by [his or her] biological . . . parent.” The Court found it clear that both parents and their children have cognizable substantive due process rights to the parent child relationship. So proof that Case wrongfully interfered with Richmond’s custody and control over Amanda would also establish that Case wrongfully interfered with Amanda’s constitutional right to be in Richmond’s custody.

     The Court found that all the requirements for applying the doctrine of collateral estoppel applied. Accordingly, they found that the district court did not err in concluding that the judgment in Richard’s action precludes Case from contesting whether she interfered with Amanda’s constitutional rights by wrongfully counseling Richmond to relinquish custody of Amanda.

Did the district court mishandle the inquiry into whether Case’s conduct was the cause of Amanda’s harm? Case did not dispute that Amanda actually suffers from numerous social problems, rather, she argued that those problems did not result from any misconduct by Case. They stemmed from a number of other threats to Amanda’s ordinary social development (abuse by her mother, Carol; removal from her biological home at an early age; relocation from Kimball to Omaha; inability to see Richmond on a regular basis, if at all.)

     However, in support of her motion for summary judgment, Amanda presented deposition testimony and an accompanying affidavit from a psychologist. The psychologist’s testimony supported the conclusion that the relinquishment was a substantial factor in bringing about Amanda’s subsequent social problems. Amanda’s presentation shifted the burden to Case to present contradictory evidence but Case did not present any such evidence. As such, the Court said that the district court did not err in concluding that summary judgment was proper on the issue of proximate causation.

Was the district court’s causation analysis correct? Case argued that the district court’s causation analysis was flawed because the court failed to distinguish the causal connection between Case’s conduct and the alleged violation of Amanda’s civil rights (conduct = liability) and the causal connection between the violation of Amanda’s civil rights and the alleged injury to Amanda (liability = damages.) That Court said that Amanda had moved for summary judgment on the “issue of liability” and was therefore free to define the scope of that motion. To Amanda, “liability” meant not only that Case’s conduct violated her constitutional rights, but also that the violation of those rights caused actual harm to her (conduct + liability = damages.)

     On that liability issue, Amanda offered evidence of the prior judgment in Richmond’s cause and argued that the judgment had preclusive effect. Regarding the issue for damages, Amanda offered the psychologist’s deposition testimony and a sworn affidavit. The inclusion of that evidence should have sent a clear sign to Case that if the district court granted Amanda’s motion in full, the only issue left to resolve regarding “damages” would be the extent, not the existence, of those damages. “Case had the opportunity, therefore, to present evidence that would negate the existence of Amanda’s damages. For whatever reason, Case did not make the most of that opportunity. But Case’s omission does not mean the district court erred in its causation analysis” ruled the Court.

Did the district court err by failing to recognize the existence of genuine factual disputes regarding Case’s conduct and proximate causation? While Case believed that factual disputes raised legitimate issues of fact as to whether she truly violated Amanda’s constitutional rights, the Court found that these factual disputes, were made irrelevant by the preclusive effect that the prior judgment in Richmond’s action.

     Case also argued that genuine issues of fact exist regarding whether Case’s misconduct caused Amanda any harm. Court found that Case’s argument misses the point. The question is whether there are genuine issues of material fact. Here, proof that Amanda and Richmond would not have reunited even without Case’s intervention is not material because, according to the psychologist’s testimony, the formal relinquishment caused harm to Amanda in and of itself. As to whether there was a question of material fact, again, Case did not present any evidence contrary to the psychologist’s testimony.

Conclusion: The Court found that the district court did not err in concluding that the judgment in Richmond’s cause precluded Case from relitigating the wrongfulness of her decision to counsel Richmond to relinquish custody of Amanda. As a violation of Richmond’s constitutional rights as a parent would also result in a violation of Amanda’s reciprocal constitutional rights as a child, under the doctrine of collateral estoppel, that judgment precluded Case from disputing the fact that she violated Amanda’s constitutional rights. The Court found that the district court also did not err in concluding that Case’s violation of Amanda’s rights resulted in actual harm to Amanda. Finally, there are no genuine issues of material fact regarding Case’s liability to Amanda. AFFIRMED.


Constitutional Law, Substantive Due Process

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In this, the second of two 42-1983 actions brought against a Health and Human Services worker for actions, she took in obtaining the relinquishment of parental rights, by a father, the Nebraska Supreme Court finds that the doctrine of collateral estoppel applies. The Court found that the fathers prior case, in which the father showed that his Constitutional rights as a parent were violated, precludes relitigating the question of whether the daughters constitutional rights were likewise violated.

Amanda C. v. Case, 275 Neb. 757 (2008)

Supreme Court Headnotes

Summary Judgment.

1.  Summary judgment is proper if the pleadings and admis sible evidence offered at the hearing show that there is no genuine issue as to any material facts, or as to the ultimate inferences that may be drawn from those facts, and that the moving party is entitled to judgment as a matter of law. ••• In the summary judgment context, a fact is material only if it would affect the outcome of the case.

2.  Proof. A party makes a prima facie case that it is entitled to summary judgment by offering sufficient evidence that, assuming it went uncontested at trial, would entitle the party to a favorable verdict. ••• If the moving party makes a prima facie case that it is entitled to summary judgment, the burden then shifts to the nonmoving party to avoid sum mary judgment by producing admissible contradictory evidence which raises a genuine issue of material fact.

3.  Appeal and Error. In reviewing summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.

Judgments:

1.  Appeal and Error. On questions of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

2.  Collateral Estoppel. Under the doctrine of collateral estoppel, also known as issue preclusion, an issue of ultimate fact that was determined by a valid and final judgment cannot be litigated again between the same parties or their privities in any future lawsuit. ••• Collateral estoppel is applicable where (1) an identical issue was decided in a prior action, (2) the prior action resulted in a judgment on the merits which was final, (3) the party against whom the doctrine is to be applied was a party or was in privity with a party to the prior action, and (4) there was an opportunity to fully and fairly litigate the issue in the prior action.

Constitutional Law:

1.  Actions. A civil remedy is provided under 42 U.S.C. § 1983 (2000) for deprivations of federally protected rights, statutory or constitutional, caused by persons acting under color of state law. ••• In any 42 U.S.C. § 1983 (2000) action, the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) Whether the conduct complained of was committed by a person acting under color of state law and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.

2.  Parental Rights: Minors. Under the U.S. Supreme Court’s longstanding precedent, a parent has a constitutional right to retain custody and control of his or her child.

Due Process:

1.  Parental Rights:

     a.  Parent and Child. The substantive due process right to family integrity protects not only the parent’s right to companionship, care, custody, and management of his or her child, but also protects the child’s reciprocal right to be raised and nurtured by his or her biological parent.

     b.  Minors. Blood alone may not suffice to permit a parent to assert the due process right to custody and control of his or her child if the parent has altogether failed to shoulder the responsibilities inherent in the parenthood.

2.  Parent and Child. Both parents and their children have cognizable substantive due process rights to the parent child relationship. ••• The Due Process Clause would be offended if a state were to attempt to force the break up of a natural family without some showing of unfit ness and for the sole reason that to do so was thought to be in the children’s best interests. ••• Substantive due process rights between a parent and child do not arise simply by virtue of a genetic connection. Rather, they depend on a deeper, more enduring relationship.

Civil Rights:

1.  Public Officers and Employees: Immunity. Public officials who have been sued in their personal capacities under 42 U.S.C. § 1983 (2000) may invoke qualified immunity as a shield from liability if the official’s conduct does not violate clearly established statutory or constitutional rights of which a reason able person would have known.

Appeal and Error.

1.  An appellate court will not review errors that were not assigned and argued in a party’s brief.

Actions:

1.  Civil Rights:

     a.  Damages: Proof. To recover compensatory damages in a 42 U.S.C. § 1983 (2000) action, the claimant must show that the violation of his or her rights resulted in some actual harm.

     b.  Torts. Causation issues in 42 U.S.C. § 1983 (2000) actions are generally resolved according to common law tort principles.

Proximate Cause:

1.  Words and Phrases. As a general matter, a proximate cause is defined as that cause which, in a natural and continuous sequence, without any effi cient, intervening cause, produces the injury, and without which the injury would not have occurred.

2.  Proof. Ordinarily a plaintiff must meet three basic require ments in establishing proximate cause: (1) that without the misconduct, the injury would not have occurred, commonly known as the “but for” rule; (2) that the injury was a natural and probable result of the misconduct; and (3) that there was no efficient intervening cause.

Negligence:

1.  Proximate Cause: Proof. When multiple causes act to produce a single injury, any one of those acts can still qualify as a proximate cause of that harm so long as it was a substantial factor in bringing about the injury.

Date Filed and Case No.: May-23,-2008. No. S-06-1097.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/may/may23/s06-1097.pdf

Court Appealed From: District Court for Kimball County: Kristine R. Cecava, Judge.

Attorneys for the Appeal: Jon Bruning and Michael J. Rumbaugh for Kelly Case, appellant. Monte l. Neilan for Amanda C., by and through Gary Richmond, Natural Parent and Next Friend, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller Lerman, JJ.

Authored By: Heavican, C.J.

Summary: Gary Richmond and Carol C. are the biological parents of Amanda C. Carol suffered from a mental illness and while the married couple lived in Omaha, they relinquished their custodial rights to their first two children through the Nebraska Department of Health and Human Services (DHHS). When Carol became pregnant with Amanda, the couple moved from Omaha to Kimball, Nebraska, apparently to prevent DHHS from seizing Amanda at birth. Amanda was born on July 21, 1987.

     Five years later, a neighbor reported that Carol was abusing Amanda. No allegations of abuse were or have been made regarding Richmond. On July 23, 1993, the DHHS took Amanda into its custody. After a foster placement in Kimball, Carol still managed to abuse Amanda. On June 1, 1995, DHHS placed Amanda with her maternal grand father and step grandmother, Clyde and Connie C., in Omaha. Richmond did not have a friendly relationship with Clyde and Connie, was not consulted about this move and no arrangements were made to allow Richmond to have regular visitation. Once Amanda was relocated to Omaha, her visits with Richmond ceased.

     On September 4, 1996, the Kimball County Attorney filed a petition in the county court for Kimball County to terminate Richmond’s parental rights. An attorney was appointed to represent him, but meanwhile, DHHS representatives began contacting Richmond and asking him to voluntarily relinquish his parental rights. Richmond repeatedly refused these requests. On August 4, 1998, Kelly Case, a caseworker at DHHS, was assigned to Amanda’s file. As with prior caseworkers before her, Case wanted Richmond to relinquish his parental rights so that Amanda could be formally adopted by Clyde and Connie. Promises were made—though it is not clear whether by Case, Connie, or both—that an open adoption would be used. Notably, Case did not inform Richmond’s attorney, the Kimball County Attorney, Amanda’s guardian ad litem, or the county court about the efforts those efforts.

     When Case and Richmond met for a final time on August 25, 1998, Richmond relinquished his parental rights over Amanda. Case filed the documents with the county court.

     In 1999, Richmond sued Case (hereinafter, Richmond’s action) alleging that, among other things, Case engaged in the unauthorized practice of law—and thereby abused her authority as a DHHS employee—when she counseled Richmond about the legal benefits of relinquishing his parental rights. Richmond sought relief pursuant to 42 U.S.C. § 1983 (2000). A jury found in favor of Richmond on his § 1983 claim, but awarded him a mere $1 in compensatory damages. The jury did, however, award Richmond $65,000 in punitive damages. The relinquishment agreements were declared null and void by the court. Case appealed and while that appeal was pending, the parties agreed to a settlement.

     On May 20, 2004, less than a year later, Richmond filed another complaint against Case. This time, Richmond filed the complaint against Case in her personal capacity on behalf of his then minor daughter, Amanda (hereinafter Amanda’s action). Among other claims, the complaint alleged that Case’s misconduct had deprived Amanda of her substantive due process rights to a parent child relationship in violation of § 1983. The district court found that the judgment against Case in Richard’s action had a preclusive effect regarding Case’s misconduct in dealing with Richmond. The court concluded that such misconduct not only violated Richmond’s parental rights, but also violated Amanda’s substantive due process rights as a child. The court granted Amanda’s motion for summary judgment as to Case’s liability subsequently issued a judgment awarding Amanda $150,000 in damages. In its judgment, the court noted that sometime after the relinquishment, Amanda began to use drugs, ran away from (and refuses to return to) the home of Clyde and Connie, gave birth to a child out of wedlock, and appeared to be suffering financially. Case appealed and the Nebraska Supreme Court wrote the opinion.

Did the district court erroneously conclude that the judgment in Richmond’s prior action against Case had a preclusive effect regarding whether Case violated Amanda’s constitutional rights in Amanda’s case? The Court said that the only real question here was collateral estoppel, and whether Case’s interference with Richmond’s substantive due process rights regarding Amanda is identical to the underlying issue of whether Case interfered with Amanda’s substantive due process rights.

     Looking to a prior case, the court found it had already answered the question of whether a child has a constitutional right to be under the care, custody, and control of his or her parent In re Guardianship of D.J., 268 Neb. 239, 246, 682 N.W.2d 238, 244 (2004). In that case the Court observed that both “parents and their children have a recognized unique and legal interest in, and a constitutionally protected right to, companionship.” The substantive due process right to family integrity “protects not only the parent’s right to the companionship, care, custody, and management of his or her child, but also protects the child’s reciprocal right to be raised and nurtured by [his or her] biological . . . parent.” The Court found it clear that both parents and their children have cognizable substantive due process rights to the parent child relationship. So proof that Case wrongfully interfered with Richmond’s custody and control over Amanda would also establish that Case wrongfully interfered with Amanda’s constitutional right to be in Richmond’s custody.

     The Court found that all the requirements for applying the doctrine of collateral estoppel applied. Accordingly, they found that the district court did not err in concluding that the judgment in Richard’s action precludes Case from contesting whether she interfered with Amanda’s constitutional rights by wrongfully counseling Richmond to relinquish custody of Amanda.

Did the district court mishandle the inquiry into whether Case’s conduct was the cause of Amanda’s harm? Case did not dispute that Amanda actually suffers from numerous social problems, rather, she argued that those problems did not result from any misconduct by Case. They stemmed from a number of other threats to Amanda’s ordinary social development (abuse by her mother, Carol; removal from her biological home at an early age; relocation from Kimball to Omaha; inability to see Richmond on a regular basis, if at all.)

     However, in support of her motion for summary judgment, Amanda presented deposition testimony and an accompanying affidavit from a psychologist. The psychologist’s testimony supported the conclusion that the relinquishment was a substantial factor in bringing about Amanda’s subsequent social problems. Amanda’s presentation shifted the burden to Case to present contradictory evidence but Case did not present any such evidence. As such, the Court said that the district court did not err in concluding that summary judgment was proper on the issue of proximate causation.

Was the district court’s causation analysis correct? Case argued that the district court’s causation analysis was flawed because the court failed to distinguish the causal connection between Case’s conduct and the alleged violation of Amanda’s civil rights (conduct = liability) and the causal connection between the violation of Amanda’s civil rights and the alleged injury to Amanda (liability = damages.) That Court said that Amanda had moved for summary judgment on the “issue of liability” and was therefore free to define the scope of that motion. To Amanda, “liability” meant not only that Case’s conduct violated her constitutional rights, but also that the violation of those rights caused actual harm to her (conduct + liability = damages.)

     On that liability issue, Amanda offered evidence of the prior judgment in Richmond’s cause and argued that the judgment had preclusive effect. Regarding the issue for damages, Amanda offered the psychologist’s deposition testimony and a sworn affidavit. The inclusion of that evidence should have sent a clear sign to Case that if the district court granted Amanda’s motion in full, the only issue left to resolve regarding “damages” would be the extent, not the existence, of those damages. “Case had the opportunity, therefore, to present evidence that would negate the existence of Amanda’s damages. For whatever reason, Case did not make the most of that opportunity. But Case’s omission does not mean the district court erred in its causation analysis” ruled the Court.

Did the district court err by failing to recognize the existence of genuine factual disputes regarding Case’s conduct and proximate causation? While Case believed that factual disputes raised legitimate issues of fact as to whether she truly violated Amanda’s constitutional rights, the Court found that these factual disputes, were made irrelevant by the preclusive effect that the prior judgment in Richmond’s action.

     Case also argued that genuine issues of fact exist regarding whether Case’s misconduct caused Amanda any harm. Court found that Case’s argument misses the point. The question is whether there are genuine issues of material fact. Here, proof that Amanda and Richmond would not have reunited even without Case’s intervention is not material because, according to the psychologist’s testimony, the formal relinquishment caused harm to Amanda in and of itself. As to whether there was a question of material fact, again, Case did not present any evidence contrary to the psychologist’s testimony.

Conclusion: The Court found that the district court did not err in concluding that the judgment in Richmond’s cause precluded Case from relitigating the wrongfulness of her decision to counsel Richmond to relinquish custody of Amanda. As a violation of Richmond’s constitutional rights as a parent would also result in a violation of Amanda’s reciprocal constitutional rights as a child, under the doctrine of collateral estoppel, that judgment precluded Case from disputing the fact that she violated Amanda’s constitutional rights. The Court found that the district court also did not err in concluding that Case’s violation of Amanda’s rights resulted in actual harm to Amanda. Finally, there are no genuine issues of material fact regarding Case’s liability to Amanda. AFFIRMED.


Damages, Interest on Taxes, Proof

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In this malpractice case against an accountant regarding income taxes, the Nebraska Supreme Court sets out the difference between what duties the accountant breached and what interest and penalties could be awarded as damages for those breaches. The Court also adopts a standard which limits the way in which interest payments to the IRS might be recoverable as damages. That standard invites a dissenting opinion.a

Frank v. Lockwood, 275 Neb. 735 (2008)

Court of Appeals Headnotes

Directed Verdict:

1.  Evidence: Appeal and Error. Concerning the overruling of a motion for a directed verdict made at the close of all the evidence, appellate review is controlled by the rule that a directed verdict is proper only when reason able minds can draw but one conclusion from the evidence, where an issue should be decided as a matter of law.

Judgments:

1.  Verdicts. On a motion for judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all the relevant evidence admitted that is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences deducible from the relevant evidence. ••• To sustain a motion for judgment notwithstanding the verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion.

     a.  Directed Verdict. A motion for judgment notwithstanding the verdict may be granted when the movant’s previous motion for directed ver dict, made at the conclusion of all the evidence, should have been sustained.

Malpractice:

1.  Accounting:

     a.  Negligence:

          i.   Proximate Cause: Proof: Damages. A plaintiff alleging accounting negligence must prove three elements: (1) the accountant’s employment, (2) the accountant’s neglect of a reasonable duty, and (3) that such negligence resulted in and was the proximate cause of loss (damages) to the client.

     b.  Taxes: Interest: Proof: Damages. Interest on taxes is recoverable in accounting malpractice actions to the extent plaintiffs carry their burden of showing that they were damaged by the imposition of interest. ••• Interest on taxes is recoverable in accounting malpractice actions to the extent plaintiffs carry their burden of showing that they were damaged by the imposition of interest.

2.  Accountants: Penalties and Forfeitures: Damages. Penalties may be recoverable as an element of damages when such penalties are the result of an accountant’s negligence.

Negligence:

1.  Proximate Cause: Words and Phrases. A proximate cause is a cause that produces a result in a natural and continuous sequence and without which the result would not have occurred.

Date Filed and Case No.: May 23, 2008. No. S 06 731.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/may/may23/s06-731.pdf

Court Appealed From: District Court for Scotts Bluff County: Robert O. Hippe, Judge.

Attorneys for the Appeal: David A. Domina, Claudia l. Stringfield Johnson and Kevin J. Dostal for Fred A. Lockwood and Fred A. Lockwood & Co., P.C., a Nebraska Corporation, appellants. Jarrod P. Crouse and Anthony Viorst for Roger Frank et al., appellees.

Judges: Heavican, C.J., Connolly, Gerrard, Stephan, McCormack, and Miller Lerman, JJ.

Not Participating: Wright, J.

Authored By: Miller Lerman, J.

Summary: Roger Frank owns and operates various business ventures and in 1997 purchased land and titled the land in the name of one of his businesses, Frank Enterprises, Inc. (an S corporation.) In February 2001, Frank, on behalf of the corporation, entered into a contract to sell a portion of the land and sought to defer taxation of gain through a “like kind exchange” pursuant to the Internal Revenue Code, I.R.C. § 1031 (2000). Frank’s accountant, Fred Lockwood and Fred A. Lockwood & Co., P.C. (hereinafter referred to collectively as “Lockwood”), told him that he had tax credits that could be used to offset taxes that may be incurred as a result of the land sale (a statement Lockwood denied having made.)

     The sale closed in October, and Frank Enterprises received proceeds and a portion of this amount was deposited with a qualified intermediary that would hold the proceeds for purposes of the anticipated § 1031 exchange. The remaining proceeds, less closing costs, were transferred to the Franks. Frank said that his decision to retain the remaining proceeds rather than using them (in a § 1031 exchange) was based on Lockwood’s advice regarding the availability of tax credits.

     In early 2002, after using part of the land sale proceeds to purchase replacement properties for a § 1031 exchange, Frank withdrew the remaining proceeds. Frank again said that he made this decision based on Lockwood’s advice. On April 15, 2002, Frank met with Lockwood regarding his 2001 income taxes and Lockwood informed him (for what Frank said was the first time) that he would not be able to use any of the tax credits to offset the capital gains tax from the land sale. As a result, Lockwood informed Frank that he would owe a large tax liability for 2001. Lockwood advised Frank to file an extension, but had not estimated the Franks’ 2001 tax liability and did not advise Frank to pay an estimate of taxes due. On October 4, 2002, Lockwood provided the Franks with a 2001 tax return. After the Franks filed the tax returns and paid the taxes for 2001, both the Internal Revenue Service (IRS) and the Nebraska Department of Revenue assessed penalties and interest related to both returns totaling approximately $37,879.

     On July 15, 2003, the Franks and Frank Enterprises filed a complaint against Lockwood asserting a cause of action for accounting malpractice. Trial was held and after the Franks rested their case, Lockwood moved for directed verdict, arguing that there was no proof of damages and no proof of proximate cause of damages. The court sustained a motion for directed verdict as to Frank Enterprises (all income and deductions were passed through to the Franks). The court also sustained the motion for directed verdict to the extent that the Franks claimed lost profits (damages were not definite.) The court overruled the remainder of the motion for directed verdict and overruled a renewed motion at the close of all the evidence.  The jury returned a verdict in favor of the Franks and awarded damages in the amount of $37,879. Lockwood filed a motion for JNOV which the court overruled. Lockwood appealed and the Nebraska Supreme Court issued the opinion.

Did the trial court err in denying Lockwood’s motions for directed verdict and JNOV? The Court concluded that the district court erred in denying parts, but not all, of Lockwood’s motion for JNOV. They found that the evidence supported finding that Lockwood neglected a reasonable duty, that Lockwood gave erroneous advice regarding the § 1031 transaction. However the Supreme Court disagreed with the district court’s emphasis of such analysis. Here, the Franks incurred penalties and interest on their 2001 tax returns because the taxes were not timely paid on April 15, 2002, and because the tax returns were not timely filed on the extended due date of October 15. Although Lockwood’s advice in connection with the payment and filing of the returns can give rise to liability, based on the evidence in this case, Lockwood’s advice regarding the availability of credits as they pertained to the Franks’ tax exposure due to the land sale could not be found to be the proximate cause of the penalties and interest actually incurred.

     Frank learned from Lockwood on April 15 that the tax credits were not available and that a large tax liability would be due and if Lockwood had advised him to pay an estimated tax on that day, he would have done so. Thereby, Frank could have avoided penalties and interest for late payment of taxes. But Lockwood failed to advise that when filing for an extension, the Franks should have paid an estimate of their tax liability in order to avoid penalties and interest. Evidence was produced that a reasonable accountant would have advised a client to pay such estimate when filing for an extension. Based on this evidence, the jury could have found that Lockwood neglected a reasonable duty by failing to advise the Franks to pay an estimated tax liability on April 15, 2002. Therefore, although Lockwood’s advice regarding the § 1031 transaction could not be found to have caused the Franks to fail to timely pay their taxes, the jury could have found that Lockwood’s further failure to advise the Franks to pay an estimated tax on April 15 caused the Franks to fail to timely pay their taxes.

Was there evidence that Lockwood’s negligence in failing to advise the Franks to pay estimated taxes on April 15, 2002, resulted in and was the proximate cause of the penalties and interest that comprise the jury’s award of damages? The Franks paid interest of $7,663 with respect to their federal and Nebraska taxes. The Court has adopted the rule that interest paid to taxing authorities is available as an item of damages in an accounting malpractice case. The Court added that interest paid to the IRS represents a payment for use of money and a person who has use of the money is not generally damaged by the payment of interest. The Court held “that interest on taxes is recoverable in accounting malpractice actions to the extent plaintiffs carry their burden of showing that they were damaged by the imposition of interest.”

     Here, the Franks failed to provide evidence that they were damaged by the payment of interest and the Court concluded that the district court erred when it failed to grant Lockwood’s motion for JNOV to the extent that the jury awarded damages for interest paid on the Franks’ federal and Nebraska taxes.

Could the Franks recover penalties related to failure to timely pay taxes and penalties related to failure to timely file returns? The penalties incurred by the Franks in this case appear to have been of two types—those incurred because the Franks failed to pay taxes when due on April 15, 2002, and those incurred because the Franks failed to file their returns when due as extended to October 15. The Court found there was sufficient evidence from which the jury could find that Lockwood was negligent in failing to advise the Franks to pay an estimate of their 2001 tax liability on April 15, 2002. Because the failure to timely pay taxes subjected the Franks to possible penalties, the jury could have found that Lockwood’s negligence resulted in and was the proximate cause of any such penalties that were imposed. The district court did not err in denying Lockwood’s motion for JNOV with respect to the damages award that was attributable to penalties for the Franks’ failure to timely pay taxes.

     However, to the extent any penalties were imposed for the Franks’ failure to timely file the tax returns, such late filing penalties were not a result of Lockwood’s advice or the failure to pay taxes on April 15, 2002. Further, the evidence was not sufficient for a jury to determine that Lockwood breached a duty with respect to the October 15 filing deadline. Because late filing penalties imposed were not the result of Lockwood’s negligence, the district court erred when it denied Lockwood’s motion for JNOV with respect to the damages awarded that was attributable to late filing penalties. The Court reversed the district court’s ruling to that extent.

     Because the evidence in the record did not allow the Court to determine what portion of the penalties are for late payment of the taxes which are recoverable, they found it necessary to remand this cause to the district court for a new trial limited to a determination of the portion of damages attributable to penal ties imposed for failure to timely pay taxes.

Conclusion: The Court concluded that there was not sufficient evidence from which the jury could find that the Franks were damaged by the imposition of interest on taxes and that there was not sufficient evidence that Lockwood’s negligence was the proximate cause of penalties for the Franks’ failure to timely file their tax returns. The district court therefore erred in denying Lockwood’s motion for JNOV with regard to those two portions of the damages awarded by the jury, and the Court reversed the district court’s ruling to that extent. They further concluded that there was sufficient evidence from which the jury could find that Lockwood neglected a reasonable duty by failing to advise the Franks to pay an estimate of their taxes on April 15, 2002, and that the evidence supported a finding that Lockwood’s negligence was the proximate cause of penalties imposed for the Franks’ failure to timely pay their taxes. However, because the portion of damages awarded attributable to late payment penalties is not ascertain able from the record the Court remanded the cause to the district court for a new trial limited to a determination of the portion of damages attributable to penalties for the failure to timely pay taxes. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR A NEW TRIAL ON THE ISSUE OF DAMAGES.

Connolly, J., DISSENTING IN PART disagreed with that part of the majority opinion that holds that the Franks cannot recover interest they paid to the IRS because of their accountant’s negligence. The opinion concludes that the Franks had use of the money, and the IRS interest is just their “payment” for that use. Justice Connolly did not believe that the Franks should have the burden to prove the value of their use of the money was less than the rate of interest charged by the IRS when they incurred the interest only because of Lockwood’s negligence. “The majority’s holding ignores the essential fact that the Franks would not have incurred a ‘payment’ for their unlawful use of the money but for Lockwood’s negligent advice, so they are not placed in a better position by their recovery of this ‘payment.’”

     While the dissent conceded that there may be circumstances when the harm caused by the practitioner’s negligence is offset by the benefit the taxpayer received from having use of the money. But the “special benefit” is Lockwood’s burden to prove. The majority conceded that Lockwood breached a duty to the Franks and was liable for damages that resulted from such negligence, it failed to answer the question “whether Lockwood’s negligence in failing to advise the Franks to pay estimated taxes on April 15, 2002, resulted in and was the proximate cause of the interest” the Franks paid.

     Justice Connolly wrote that to the extent the majority’s failure to discuss causation implies that the Franks’ payment of IRS interest is not a legally recognized or compensable injury, “I point out that such a reading is contrary to the greater weight of authority in tax malpractice cases.” And while the majority opinion stated that it was not adopting a blanket rule precluding the recovery of IRS interest, “it appears to set a high bar for taxpayers to prove damages.” Denying recovery of IRS interest from a negligent accountant permits the tortfeasor to benefit from the presumption that a harmed taxpayer has been or should have been ingenious enough to (1) maintain a sum of money that he would have otherwise had to pay over to the IRS and (2) invest that money in a manner in which he earned interest in an amount comparable to the interest rate charged by the IRS. “I am not that naive to presume the taxpayer is clairvoyant.”

     Other courts addressing the “windfall” concern adopted a measure of damages that ensures both that the taxpayer does not receive a double recovery and that the taxpayer is not punished for failing to anticipate the practitioner’s negligence. Here, the Franks satisfied the elements of their claim. Requiring Lockwood to prove an offset does not permit the Franks to benefit from any presumption regarding damages. Instead, it eliminates presumptions against either party and requires each party to produce proof supporting their claims. Because the evidence did not support an offset of the Franks’ damages, the dissent would give the Franks the benefit of their jury verdict for the interest they paid to the IRS.


Expert Witness, Causation, Words and Phrases, "Chance" and "Prognosis"

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In this malpractice action involving professional negligence of medical professionals, the issue presented before the Nebraska Supreme Court was whether the plaintiff had produced competent expert testimony showing that any actions or inactions of the defendants were a proximate cause of her injury. Her expert's opinion that early surgical decompression of her spinal injury would more likely than not have led to an improved outcome for plaintiff was sufficient to establish an issue of fact concerning causation. Since there remains a material issue of fact in dispute, the district court here erred in granting summary judgment.

Rankin v. Stetson, 275 Neb. 775 (2008)

Supreme Court Headnotes

Summary Judgment:

1.  Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2.  Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate it is entitled to judgment as a matter of law. ••• A movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to a judgment if the evidence were uncontroverted at trial. Then, the burden of producing evidence shifts to the party opposing the motion.

3.  Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

Rules of Evidence.

1.  In proceedings where the Nebraska evidence Rules apply, the admissibility of evidence is controlled by such rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility.

2.  Expert Witnesses. Where the rules of evidence apply, the admissibility of an expert’s testimony, including an opinion, which is based on a scientific principle or on a technique or process which utilizes or applies a scientific principle, depends on general acceptance of the principle, technique, or process in the relevant scientific community.

Trial:

1.  Expert Witnesses: Appeal and Error. The admission of expert testimony is ordinarily within the trial court’s discretion, and its ruling will be upheld absent an abuse of discretion.

Malpractice:

1.  Physician and Patient: Proof: Proximate Cause. In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was the proximate cause of the plaintiff’s alleged injuries.

Date Filed and Case No.: May 23, 2008. No. S 07 073.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/may/may23/s07-073.pdf

Court Appealed From: District Court for Dawes County: Paul D. Empson, Judge.

Attorneys for the Appeal: Maren Lynn Chaloupka and Robert Paul Chaloupka for Sharon K. Rankin, appellant. Lonnie R. Braun for W. K. Stetson, M.D., et al., appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller Lerman, JJ.

Authored By: Wright, J.

Summary: On October 31, 2002, Sharon K. Rankin was injured when she fell on ice near her residence in Chadron, Nebraska. She was examined in a Chadron hospital emergency room by Dr. W. K. Stetson who ordered x rays and an MRI of the lumbar spine, which images showed no injury. Rankin was released from the hospital, followed up with her personal physician, underwent physical therapy, but her symptoms persisted. When she was referred to a neurosurgeon another MRI of her entire spine revealed a disk herniation at the T10 11 level with spinal stenosis. The neurosurgeon diagnosed Rankin with thoracic myelopathy, likely due to that ruptured disk. While a diskectomy, fusion and other procedures was recommended, the neurosurgeon believed that the surgery was not an emergency at that point, since the compression had occurred a few months earlier.

     In the following months, Rankin sought several opinions before opting for thoracoscopic surgery rather than an open thoracotomy, (which requires a large incision in the chest wall) to fuse T10 11 of the spine. Rankin recovered satisfactorily from the surgery but was unchanged neurologically. By October 2004, though the neurologist determined that Rankin was neurologically stable, she still had very mild weakness of the legs, spasticity, and local tenderness and pain at the site of the surgery.

     Rankin sued her treating physicians and the Chadron Medical Clinic, P.C. (collectively defendants), for negligently failing to properly diagnose and treat her spinal cord injury. In separate answers, the defendants denied Rankin’s allegations and asserted that Rankin unreasonably delayed in following physician directions and may have caused some or all of her alleged damages.

     Prior to trial, the defendants moved to exclude the testimony of Rankin’s expert, Dr. Michael Brown, a neurosurgeon. Brown’s affidavit contained a summary of his testimony to be offered at trial and the information upon which his opinions were based. Based on reasonable medical probability, Brown opined it was more likely than not that Rankin would have recovered if the surgical repair had occurred within the first 72 hours after her injury. He also believed that Rankin’s chance of avoiding permanent injury decreased each day after the 72 hour period until she was finally diagnosed with the thoracic disk herniation with resultant spinal cord compression and thoracic myelopathy.

     Brown opined that the general standard for treating spinal cord injuries was to operate on the patient as soon as it could be accomplished if there was no significant reason which argued against surgery and that 72 hours was the general standard. The district court excluded Brown’s testimony based on the principles of Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001) and granted the defendants’ subsequent summary judgment motion and dismissed the complaint. Rankin appealed, claiming the court erred in sustaining the defendants’ motions. The Nebraska Supreme Court wrote the opinion.

Did the district court err in sustaining the defendants’ motion to strike Brown’s testimony? In refusing to allow Brown to give his opinion, the district court concluded that Brown failed to disclose the underlying facts or data for his opinions as required under Neb. Evid. R. 705. It also held that Brown did not qualify to give his opinion under Rule 702, because he failed to set forth any methodology from which it could be determined that his opinions arose from facts or procedures that could be tested.

     The subject of Brown’s opinion was whether a patient with the type of injury sustained by Rankin should have had surgery within 72 hours of the injury. The district court, in applying the principles of Daubert/Schafersman, acted as a gatekeeper to ensure that the reasoning or methodology underlying the expert testimony was valid and properly applied to the facts in issue. Because Brown failed to disclose the underlying facts or data for his opinions under rule 705, Brown did not qualify to give his opinion under rule 702.

     In his testimony, Brown said he was not aware of any peer reviewed literature that would support his opinion concerning the 72 hour period. Although he had no way to quantify how Rankin’s deficits were increased or exacerbated by delaying surgery for more than 72 hours, Brown stated it would have been very unlikely for Rankin to make a complete recovery.

     The district court found that Brown was unable to state that his theory concerning the timeframe for spinal surgery had been tested in any way. He was also unable to provide a basis for his 72 hour theory. He could not cite any peer reviewed literature to support his theory, and he did not provide any testimony to suggest that the 72 hour theory is generally accepted. The district court rejected Brown’s testimony based on the principles announced in Schafersman and the Court concluded that the court’s refusal to admit Brown’s testimony into evidence was not an abuse of discretion.

Did the district court err in sustaining the defendants’ motion for summary judgment? In support of their motion for summary judgment on the issue of causation, the defendants offered published medical articles. In opposition to the motion for summary judgment, Rankin offered several affidavits, including the affidavit of Dr. Jeffrey Gross, a neurosurgeon. Whose testimony was underlaid with his opinion that the longer a compressive spinal cord injury existed without remediation, the less likely the patient would regain lost neurological function.

     Gross said he was trained to understand that spinal cord compression constituted a surgical emergency, and he had applied that training to his own practice. Gross noted that the phrase “the sooner, the better,” as applied to when a patient should undergo surgical decompression of a disk herniation, was not a “vague or cavalier statement.” He stated that a reasonable neurosurgeon would agree that surgical decompression of a thoracic disk herniation causing spinal cord compression with neurological symptoms should occur within a matter of hours rather than weeks or months.

     On appeal, the defendants argued that Gross’ opinions were framed in terms of “loss of chance” and were therefore insufficient to establish the defendants’ alleged negligence as a proximate cause of Rankin’s injury. The Court agreed that an opinion framed in terms of loss of chance would not sustain Rankin’s burden of establishing that the defendants proximately caused her injury and noted that Nebraska has not recognized the loss of chance doctrine. See Steineke v. Share Health Plan of Neb., 246 Neb. 374, 518 N.W.2d 904 (1994). However, Gross’ statements that Rankin would have had a “better prognosis” and a “chance of avoiding permanent neurological injury” do not equate with an opinion that it was more likely than not that Rankin would have had a better outcome if she had undergone surgery immediately following her injury.

     Opinions dealing with proximate causation are required to be given in terms that express a probability greater than 50 percent. Thus, Gross’ statements do not establish the required certainty to prove causation. While a 49 percent chance of a better recovery may be medically significant, it does not meet the legal requirements for proof of causation. The terms “chance” and “prognosis” by definition do not establish the certainty of proof that is required. On the other hand, the Court said that an opinion expressed in terms that it is more likely than not that a plaintiff “would have had a better outcome” is sufficiently certain to establish causation. A better outcome is not the same as a chance of a better outcome. “Rather, it is a definite result” wrote the Court. “In this case, there were statements within Gross’ affidavit that were sufficient to establish causation.”

     Viewing Gross’ affidavit in a light most favorable to Rankin and giving her the benefit of all reasonable inferences from such evidence, the Court found that contrary to the defendants’ assertion, Gross’ affidavit espoused more than a mere “loss of chance.” Gross opined that early surgical decompression of the spinal cord would more likely than not have led to an improved outcome for Rankin. This evidence established causation for the purpose of opposing the defendants’ motion for summary judgment on such issue. Thus, Gross’ affidavit satisfied the requirement that Rankin produce some expert testimony to establish that the actions or inactions of the defendants were a proximate cause of Rankin’s injury.

Conclusion: In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was the proximate cause of the plaintiff’s alleged injuries. Viewing the evidence in the light most favorable to Rankin and giving her the benefit of all reasonable inferences deducible from the evidence Gross’ opinion that early surgical decompression would more likely than not have led to an improved outcome for Rankin was sufficient to establish an issue of fact concerning causation. Since there remained a material issue of fact in dispute, the district court erred in granting summary judgment. Therefore, the Court reversed the judgment of the district court and remanded the cause for further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.


Malpractice, Accountant, Taxes, Proof

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In this malpractice case against an accountant regarding income taxes, the Nebraska Supreme Court sets out the difference between what duties the accountant breached and what interest and penalties could be awarded as damages for those breaches. The Court also adopts a standard which limits the way in which interest payments to the IRS might be recoverable as damages. That standard invites a dissenting opinion.a

Frank v. Lockwood, 275 Neb. 735 (2008)

Court of Appeals Headnotes

Directed Verdict:

1.  Evidence: Appeal and Error. Concerning the overruling of a motion for a directed verdict made at the close of all the evidence, appellate review is controlled by the rule that a directed verdict is proper only when reason able minds can draw but one conclusion from the evidence, where an issue should be decided as a matter of law.

Judgments:

1.  Verdicts. On a motion for judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all the relevant evidence admitted that is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences deducible from the relevant evidence. ••• To sustain a motion for judgment notwithstanding the verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion.

     a.  Directed Verdict. A motion for judgment notwithstanding the verdict may be granted when the movant’s previous motion for directed ver dict, made at the conclusion of all the evidence, should have been sustained.

Malpractice:

1.  Accounting:

     a.  Negligence:

          i.   Proximate Cause: Proof: Damages. A plaintiff alleging accounting negligence must prove three elements: (1) the accountant’s employment, (2) the accountant’s neglect of a reasonable duty, and (3) that such negligence resulted in and was the proximate cause of loss (damages) to the client.

     b.  Taxes: Interest: Proof: Damages. Interest on taxes is recoverable in accounting malpractice actions to the extent plaintiffs carry their burden of showing that they were damaged by the imposition of interest. ••• Interest on taxes is recoverable in accounting malpractice actions to the extent plaintiffs carry their burden of showing that they were damaged by the imposition of interest.

2.  Accountants: Penalties and Forfeitures: Damages. Penalties may be recoverable as an element of damages when such penalties are the result of an accountant’s negligence.

Negligence:

1.  Proximate Cause: Words and Phrases. A proximate cause is a cause that produces a result in a natural and continuous sequence and without which the result would not have occurred.

Date Filed and Case No.: May 23, 2008. No. S 06 731.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/may/may23/s06-731.pdf

Court Appealed From: District Court for Scotts Bluff County: Robert O. Hippe, Judge.

Attorneys for the Appeal: David A. Domina, Claudia l. Stringfield Johnson and Kevin J. Dostal for Fred A. Lockwood and Fred A. Lockwood & Co., P.C., a Nebraska Corporation, appellants. Jarrod P. Crouse and Anthony Viorst for Roger Frank et al., appellees.

Judges: Heavican, C.J., Connolly, Gerrard, Stephan, McCormack, and Miller Lerman, JJ.

Not Participating: Wright, J.

Authored By: Miller Lerman, J.

Summary: Roger Frank owns and operates various business ventures and in 1997 purchased land and titled the land in the name of one of his businesses, Frank Enterprises, Inc. (an S corporation.) In February 2001, Frank, on behalf of the corporation, entered into a contract to sell a portion of the land and sought to defer taxation of gain through a “like kind exchange” pursuant to the Internal Revenue Code, I.R.C. § 1031 (2000). Frank’s accountant, Fred Lockwood and Fred A. Lockwood & Co., P.C. (hereinafter referred to collectively as “Lockwood”), told him that he had tax credits that could be used to offset taxes that may be incurred as a result of the land sale (a statement Lockwood denied having made.)

     The sale closed in October, and Frank Enterprises received proceeds and a portion of this amount was deposited with a qualified intermediary that would hold the proceeds for purposes of the anticipated § 1031 exchange. The remaining proceeds, less closing costs, were transferred to the Franks. Frank said that his decision to retain the remaining proceeds rather than using them (in a § 1031 exchange) was based on Lockwood’s advice regarding the availability of tax credits.

     In early 2002, after using part of the land sale proceeds to purchase replacement properties for a § 1031 exchange, Frank withdrew the remaining proceeds. Frank again said that he made this decision based on Lockwood’s advice. On April 15, 2002, Frank met with Lockwood regarding his 2001 income taxes and Lockwood informed him (for what Frank said was the first time) that he would not be able to use any of the tax credits to offset the capital gains tax from the land sale. As a result, Lockwood informed Frank that he would owe a large tax liability for 2001. Lockwood advised Frank to file an extension, but had not estimated the Franks’ 2001 tax liability and did not advise Frank to pay an estimate of taxes due. On October 4, 2002, Lockwood provided the Franks with a 2001 tax return. After the Franks filed the tax returns and paid the taxes for 2001, both the Internal Revenue Service (IRS) and the Nebraska Department of Revenue assessed penalties and interest related to both returns totaling approximately $37,879.

     On July 15, 2003, the Franks and Frank Enterprises filed a complaint against Lockwood asserting a cause of action for accounting malpractice. Trial was held and after the Franks rested their case, Lockwood moved for directed verdict, arguing that there was no proof of damages and no proof of proximate cause of damages. The court sustained a motion for directed verdict as to Frank Enterprises (all income and deductions were passed through to the Franks). The court also sustained the motion for directed verdict to the extent that the Franks claimed lost profits (damages were not definite.) The court overruled the remainder of the motion for directed verdict and overruled a renewed motion at the close of all the evidence.  The jury returned a verdict in favor of the Franks and awarded damages in the amount of $37,879. Lockwood filed a motion for JNOV which the court overruled. Lockwood appealed and the Nebraska Supreme Court issued the opinion.

Did the trial court err in denying Lockwood’s motions for directed verdict and JNOV? The Court concluded that the district court erred in denying parts, but not all, of Lockwood’s motion for JNOV. They found that the evidence supported finding that Lockwood neglected a reasonable duty, that Lockwood gave erroneous advice regarding the § 1031 transaction. However the Supreme Court disagreed with the district court’s emphasis of such analysis. Here, the Franks incurred penalties and interest on their 2001 tax returns because the taxes were not timely paid on April 15, 2002, and because the tax returns were not timely filed on the extended due date of October 15. Although Lockwood’s advice in connection with the payment and filing of the returns can give rise to liability, based on the evidence in this case, Lockwood’s advice regarding the availability of credits as they pertained to the Franks’ tax exposure due to the land sale could not be found to be the proximate cause of the penalties and interest actually incurred.

     Frank learned from Lockwood on April 15 that the tax credits were not available and that a large tax liability would be due and if Lockwood had advised him to pay an estimated tax on that day, he would have done so. Thereby, Frank could have avoided penalties and interest for late payment of taxes. But Lockwood failed to advise that when filing for an extension, the Franks should have paid an estimate of their tax liability in order to avoid penalties and interest. Evidence was produced that a reasonable accountant would have advised a client to pay such estimate when filing for an extension. Based on this evidence, the jury could have found that Lockwood neglected a reasonable duty by failing to advise the Franks to pay an estimated tax liability on April 15, 2002. Therefore, although Lockwood’s advice regarding the § 1031 transaction could not be found to have caused the Franks to fail to timely pay their taxes, the jury could have found that Lockwood’s further failure to advise the Franks to pay an estimated tax on April 15 caused the Franks to fail to timely pay their taxes.

Was there evidence that Lockwood’s negligence in failing to advise the Franks to pay estimated taxes on April 15, 2002, resulted in and was the proximate cause of the penalties and interest that comprise the jury’s award of damages? The Franks paid interest of $7,663 with respect to their federal and Nebraska taxes. The Court has adopted the rule that interest paid to taxing authorities is available as an item of damages in an accounting malpractice case. The Court added that interest paid to the IRS represents a payment for use of money and a person who has use of the money is not generally damaged by the payment of interest. The Court held “that interest on taxes is recoverable in accounting malpractice actions to the extent plaintiffs carry their burden of showing that they were damaged by the imposition of interest.”

     Here, the Franks failed to provide evidence that they were damaged by the payment of interest and the Court concluded that the district court erred when it failed to grant Lockwood’s motion for JNOV to the extent that the jury awarded damages for interest paid on the Franks’ federal and Nebraska taxes.

Could the Franks recover penalties related to failure to timely pay taxes and penalties related to failure to timely file returns? The penalties incurred by the Franks in this case appear to have been of two types—those incurred because the Franks failed to pay taxes when due on April 15, 2002, and those incurred because the Franks failed to file their returns when due as extended to October 15. The Court found there was sufficient evidence from which the jury could find that Lockwood was negligent in failing to advise the Franks to pay an estimate of their 2001 tax liability on April 15, 2002. Because the failure to timely pay taxes subjected the Franks to possible penalties, the jury could have found that Lockwood’s negligence resulted in and was the proximate cause of any such penalties that were imposed. The district court did not err in denying Lockwood’s motion for JNOV with respect to the damages award that was attributable to penalties for the Franks’ failure to timely pay taxes.

     However, to the extent any penalties were imposed for the Franks’ failure to timely file the tax returns, such late filing penalties were not a result of Lockwood’s advice or the failure to pay taxes on April 15, 2002. Further, the evidence was not sufficient for a jury to determine that Lockwood breached a duty with respect to the October 15 filing deadline. Because late filing penalties imposed were not the result of Lockwood’s negligence, the district court erred when it denied Lockwood’s motion for JNOV with respect to the damages awarded that was attributable to late filing penalties. The Court reversed the district court’s ruling to that extent.

     Because the evidence in the record did not allow the Court to determine what portion of the penalties are for late payment of the taxes which are recoverable, they found it necessary to remand this cause to the district court for a new trial limited to a determination of the portion of damages attributable to penal ties imposed for failure to timely pay taxes.

Conclusion: The Court concluded that there was not sufficient evidence from which the jury could find that the Franks were damaged by the imposition of interest on taxes and that there was not sufficient evidence that Lockwood’s negligence was the proximate cause of penalties for the Franks’ failure to timely file their tax returns. The district court therefore erred in denying Lockwood’s motion for JNOV with regard to those two portions of the damages awarded by the jury, and the Court reversed the district court’s ruling to that extent. They further concluded that there was sufficient evidence from which the jury could find that Lockwood neglected a reasonable duty by failing to advise the Franks to pay an estimate of their taxes on April 15, 2002, and that the evidence supported a finding that Lockwood’s negligence was the proximate cause of penalties imposed for the Franks’ failure to timely pay their taxes. However, because the portion of damages awarded attributable to late payment penalties is not ascertain able from the record the Court remanded the cause to the district court for a new trial limited to a determination of the portion of damages attributable to penalties for the failure to timely pay taxes. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR A NEW TRIAL ON THE ISSUE OF DAMAGES.

Connolly, J., DISSENTING IN PART disagreed with that part of the majority opinion that holds that the Franks cannot recover interest they paid to the IRS because of their accountant’s negligence. The opinion concludes that the Franks had use of the money, and the IRS interest is just their “payment” for that use. Justice Connolly did not believe that the Franks should have the burden to prove the value of their use of the money was less than the rate of interest charged by the IRS when they incurred the interest only because of Lockwood’s negligence. “The majority’s holding ignores the essential fact that the Franks would not have incurred a ‘payment’ for their unlawful use of the money but for Lockwood’s negligent advice, so they are not placed in a better position by their recovery of this ‘payment.’”

     While the dissent conceded that there may be circumstances when the harm caused by the practitioner’s negligence is offset by the benefit the taxpayer received from having use of the money. But the “special benefit” is Lockwood’s burden to prove. The majority conceded that Lockwood breached a duty to the Franks and was liable for damages that resulted from such negligence, it failed to answer the question “whether Lockwood’s negligence in failing to advise the Franks to pay estimated taxes on April 15, 2002, resulted in and was the proximate cause of the interest” the Franks paid.

     Justice Connolly wrote that to the extent the majority’s failure to discuss causation implies that the Franks’ payment of IRS interest is not a legally recognized or compensable injury, “I point out that such a reading is contrary to the greater weight of authority in tax malpractice cases.” And while the majority opinion stated that it was not adopting a blanket rule precluding the recovery of IRS interest, “it appears to set a high bar for taxpayers to prove damages.” Denying recovery of IRS interest from a negligent accountant permits the tortfeasor to benefit from the presumption that a harmed taxpayer has been or should have been ingenious enough to (1) maintain a sum of money that he would have otherwise had to pay over to the IRS and (2) invest that money in a manner in which he earned interest in an amount comparable to the interest rate charged by the IRS. “I am not that naive to presume the taxpayer is clairvoyant.”

     Other courts addressing the “windfall” concern adopted a measure of damages that ensures both that the taxpayer does not receive a double recovery and that the taxpayer is not punished for failing to anticipate the practitioner’s negligence. Here, the Franks satisfied the elements of their claim. Requiring Lockwood to prove an offset does not permit the Franks to benefit from any presumption regarding damages. Instead, it eliminates presumptions against either party and requires each party to produce proof supporting their claims. Because the evidence did not support an offset of the Franks’ damages, the dissent would give the Franks the benefit of their jury verdict for the interest they paid to the IRS.


Medical Malpractice, Summary Judgment, Causation

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In this malpractice action involving professional negligence of medical professionals, the issue presented before the Nebraska Supreme Court was whether the plaintiff had produced competent expert testimony showing that any actions or inactions of the defendants were a proximate cause of her injury. Her expert's opinion that early surgical decompression of her spinal injury would more likely than not have led to an improved outcome for plaintiff was sufficient to establish an issue of fact concerning causation. Since there remains a material issue of fact in dispute, the district court here erred in granting summary judgment.

Rankin v. Stetson, 275 Neb. 775 (2008)

Supreme Court Headnotes

Summary Judgment:

1.  Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2.  Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate it is entitled to judgment as a matter of law. ••• A movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to a judgment if the evidence were uncontroverted at trial. Then, the burden of producing evidence shifts to the party opposing the motion.

3.  Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

Rules of Evidence.

1.  In proceedings where the Nebraska evidence Rules apply, the admissibility of evidence is controlled by such rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility.

2.  Expert Witnesses. Where the rules of evidence apply, the admissibility of an expert’s testimony, including an opinion, which is based on a scientific principle or on a technique or process which utilizes or applies a scientific principle, depends on general acceptance of the principle, technique, or process in the relevant scientific community.

Trial:

1.  Expert Witnesses: Appeal and Error. The admission of expert testimony is ordinarily within the trial court’s discretion, and its ruling will be upheld absent an abuse of discretion.

Malpractice:

1.  Physician and Patient: Proof: Proximate Cause. In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was the proximate cause of the plaintiff’s alleged injuries.

Date Filed and Case No.: May 23, 2008. No. S 07 073.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/may/may23/s07-073.pdf

Court Appealed From: District Court for Dawes County: Paul D. Empson, Judge.

Attorneys for the Appeal: Maren Lynn Chaloupka and Robert Paul Chaloupka for Sharon K. Rankin, appellant. Lonnie R. Braun for W. K. Stetson, M.D., et al., appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller Lerman, JJ.

Authored By: Wright, J.

Summary: On October 31, 2002, Sharon K. Rankin was injured when she fell on ice near her residence in Chadron, Nebraska. She was examined in a Chadron hospital emergency room by Dr. W. K. Stetson who ordered x rays and an MRI of the lumbar spine, which images showed no injury. Rankin was released from the hospital, followed up with her personal physician, underwent physical therapy, but her symptoms persisted. When she was referred to a neurosurgeon another MRI of her entire spine revealed a disk herniation at the T10 11 level with spinal stenosis. The neurosurgeon diagnosed Rankin with thoracic myelopathy, likely due to that ruptured disk. While a diskectomy, fusion and other procedures was recommended, the neurosurgeon believed that the surgery was not an emergency at that point, since the compression had occurred a few months earlier.

     In the following months, Rankin sought several opinions before opting for thoracoscopic surgery rather than an open thoracotomy, (which requires a large incision in the chest wall) to fuse T10 11 of the spine. Rankin recovered satisfactorily from the surgery but was unchanged neurologically. By October 2004, though the neurologist determined that Rankin was neurologically stable, she still had very mild weakness of the legs, spasticity, and local tenderness and pain at the site of the surgery.

     Rankin sued her treating physicians and the Chadron Medical Clinic, P.C. (collectively defendants), for negligently failing to properly diagnose and treat her spinal cord injury. In separate answers, the defendants denied Rankin’s allegations and asserted that Rankin unreasonably delayed in following physician directions and may have caused some or all of her alleged damages.

     Prior to trial, the defendants moved to exclude the testimony of Rankin’s expert, Dr. Michael Brown, a neurosurgeon. Brown’s affidavit contained a summary of his testimony to be offered at trial and the information upon which his opinions were based. Based on reasonable medical probability, Brown opined it was more likely than not that Rankin would have recovered if the surgical repair had occurred within the first 72 hours after her injury. He also believed that Rankin’s chance of avoiding permanent injury decreased each day after the 72 hour period until she was finally diagnosed with the thoracic disk herniation with resultant spinal cord compression and thoracic myelopathy.

     Brown opined that the general standard for treating spinal cord injuries was to operate on the patient as soon as it could be accomplished if there was no significant reason which argued against surgery and that 72 hours was the general standard. The district court excluded Brown’s testimony based on the principles of Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001) and granted the defendants’ subsequent summary judgment motion and dismissed the complaint. Rankin appealed, claiming the court erred in sustaining the defendants’ motions. The Nebraska Supreme Court wrote the opinion.

Did the district court err in sustaining the defendants’ motion to strike Brown’s testimony? In refusing to allow Brown to give his opinion, the district court concluded that Brown failed to disclose the underlying facts or data for his opinions as required under Neb. Evid. R. 705. It also held that Brown did not qualify to give his opinion under Rule 702, because he failed to set forth any methodology from which it could be determined that his opinions arose from facts or procedures that could be tested.

     The subject of Brown’s opinion was whether a patient with the type of injury sustained by Rankin should have had surgery within 72 hours of the injury. The district court, in applying the principles of Daubert/Schafersman, acted as a gatekeeper to ensure that the reasoning or methodology underlying the expert testimony was valid and properly applied to the facts in issue. Because Brown failed to disclose the underlying facts or data for his opinions under rule 705, Brown did not qualify to give his opinion under rule 702.

     In his testimony, Brown said he was not aware of any peer reviewed literature that would support his opinion concerning the 72 hour period. Although he had no way to quantify how Rankin’s deficits were increased or exacerbated by delaying surgery for more than 72 hours, Brown stated it would have been very unlikely for Rankin to make a complete recovery.

     The district court found that Brown was unable to state that his theory concerning the timeframe for spinal surgery had been tested in any way. He was also unable to provide a basis for his 72 hour theory. He could not cite any peer reviewed literature to support his theory, and he did not provide any testimony to suggest that the 72 hour theory is generally accepted. The district court rejected Brown’s testimony based on the principles announced in Schafersman and the Court concluded that the court’s refusal to admit Brown’s testimony into evidence was not an abuse of discretion.

Did the district court err in sustaining the defendants’ motion for summary judgment? In support of their motion for summary judgment on the issue of causation, the defendants offered published medical articles. In opposition to the motion for summary judgment, Rankin offered several affidavits, including the affidavit of Dr. Jeffrey Gross, a neurosurgeon. Whose testimony was underlaid with his opinion that the longer a compressive spinal cord injury existed without remediation, the less likely the patient would regain lost neurological function.

     Gross said he was trained to understand that spinal cord compression constituted a surgical emergency, and he had applied that training to his own practice. Gross noted that the phrase “the sooner, the better,” as applied to when a patient should undergo surgical decompression of a disk herniation, was not a “vague or cavalier statement.” He stated that a reasonable neurosurgeon would agree that surgical decompression of a thoracic disk herniation causing spinal cord compression with neurological symptoms should occur within a matter of hours rather than weeks or months.

     On appeal, the defendants argued that Gross’ opinions were framed in terms of “loss of chance” and were therefore insufficient to establish the defendants’ alleged negligence as a proximate cause of Rankin’s injury. The Court agreed that an opinion framed in terms of loss of chance would not sustain Rankin’s burden of establishing that the defendants proximately caused her injury and noted that Nebraska has not recognized the loss of chance doctrine. See Steineke v. Share Health Plan of Neb., 246 Neb. 374, 518 N.W.2d 904 (1994). However, Gross’ statements that Rankin would have had a “better prognosis” and a “chance of avoiding permanent neurological injury” do not equate with an opinion that it was more likely than not that Rankin would have had a better outcome if she had undergone surgery immediately following her injury.

     Opinions dealing with proximate causation are required to be given in terms that express a probability greater than 50 percent. Thus, Gross’ statements do not establish the required certainty to prove causation. While a 49 percent chance of a better recovery may be medically significant, it does not meet the legal requirements for proof of causation. The terms “chance” and “prognosis” by definition do not establish the certainty of proof that is required. On the other hand, the Court said that an opinion expressed in terms that it is more likely than not that a plaintiff “would have had a better outcome” is sufficiently certain to establish causation. A better outcome is not the same as a chance of a better outcome. “Rather, it is a definite result” wrote the Court. “In this case, there were statements within Gross’ affidavit that were sufficient to establish causation.”

     Viewing Gross’ affidavit in a light most favorable to Rankin and giving her the benefit of all reasonable inferences from such evidence, the Court found that contrary to the defendants’ assertion, Gross’ affidavit espoused more than a mere “loss of chance.” Gross opined that early surgical decompression of the spinal cord would more likely than not have led to an improved outcome for Rankin. This evidence established causation for the purpose of opposing the defendants’ motion for summary judgment on such issue. Thus, Gross’ affidavit satisfied the requirement that Rankin produce some expert testimony to establish that the actions or inactions of the defendants were a proximate cause of Rankin’s injury.

Conclusion: In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was the proximate cause of the plaintiff’s alleged injuries. Viewing the evidence in the light most favorable to Rankin and giving her the benefit of all reasonable inferences deducible from the evidence Gross’ opinion that early surgical decompression would more likely than not have led to an improved outcome for Rankin was sufficient to establish an issue of fact concerning causation. Since there remained a material issue of fact in dispute, the district court erred in granting summary judgment. Therefore, the Court reversed the judgment of the district court and remanded the cause for further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.


Parental Rights-Children's Rights, Collateral Estoppel

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In this, the second of two 42-1983 actions brought against a Health and Human Services worker for actions, she took in obtaining the relinquishment of parental rights, by a father, the Nebraska Supreme Court finds that the doctrine of collateral estoppel applies. The Court found that the fathers prior case, in which the father showed that his Constitutional rights as a parent were violated, precludes relitigating the question of whether the daughters constitutional rights were likewise violated.

Amanda C. v. Case, 275 Neb. 757 (2008)

Supreme Court Headnotes

Summary Judgment.

1.  Summary judgment is proper if the pleadings and admis sible evidence offered at the hearing show that there is no genuine issue as to any material facts, or as to the ultimate inferences that may be drawn from those facts, and that the moving party is entitled to judgment as a matter of law. ••• In the summary judgment context, a fact is material only if it would affect the outcome of the case.