Opinion
CASE NO. 8:00CV527; 8:00CV529; 8:00CV530; 8:00CV531; 8:00CV532; 8:00CV533; 8:00CV534; 8:00CV535; 8:00CV536; 8:00CV537; 8:01CV27; 8:01CV28; 8:02CV293.
January 28, 2005
MEMORANDUM AND ORDER (MEDICAL CAUSATION)
This matter is before the Court in these consolidated cases on the Motion for Partial Summary Judgment (Medical Causation) filed by Defendant IBP, Inc. ( See, e.g., 8:00CV527, Filing No. 263). IBP argues that because the Court has restricted the testimony of the Plaintiffs' only remaining expert witness on causation to exclude her opinions relative to medical causation, the Plaintiffs will be unable to demonstrate that any of the Plaintiffs' permanent medical conditions are proximately caused by the Defendant's alleged nuisance or negligence. (IBP's briefs at Filing Nos. 264, 328). The Plaintiffs' brief concedes that IBP's motion is "totally dependent" upon the Court's disposition of the motion in limine relative to Harriett Ammann, Ph.D. (Filing No. 318 at 2). Plaintiffs have filed evidence in opposition to the motion, including reports and deposition excerpts from medical experts whom the Plaintiffs previously designated as rebuttal experts. (Filing No. 350).
Because expert medical evidence is required under Nebraska law to establish that a permanent injury was proximately caused by the negligence or nuisance of the actor, I conclude that IBP's motion for partial summary judgment on the issue of medical causation should be granted.
Summary Judgment Standard
Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Philip v. Ford Motor Co., 328 F.3d 1020, 1023 (8th Cir. 2003). Regarding this motion, IBP "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the Declarations, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). In response, the Plaintiffs' burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).Summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 327.
Analysis
Plaintiffs' remaining claims against IBP are based on theories of nuisance and negligence. By this motion, IBP seeks summary judgment on any claim by the Plaintiffs that they have suffered "permanent adverse health effects" as a result of the Defendant's negligence or nuisance. Because I agree that any permanent injury that the Plaintiffs contend was proximately caused by IBP's action would have to be shown by expert medical testimony, IBP's motion will be granted.
In any negligence case in which a plaintiff is claiming personal injury, the burden rests on the plaintiff to prove by a preponderance of the evidence each essential element of the negligence claim, including that the defendant's negligence was the proximate cause of the personal injury sustained. Eiting v. Godding, 214 N.W.2d 241, 243 (Neb. 1974). The same is true of claims for personal injury based on a nuisance theory. See Thomsen v. Greve, 550 N.W.2d 49, 57 (Neb.App. 1996) (holding that the court could properly award damages for injuries that the plaintiffs proved were proximately caused by the nuisance created by the [defendant's] waste-treatment system). Under either negligence or nuisance theories, Nebraska law requires that expert medical testimony be used to demonstrate causation with regard to permanent personal injuries.
In the following excerpt, the Eiting Court explained the circumstances under which expert medical testimony is required to satisfy a plaintiff's burden and when it is not.
In personal injury cases where the injuries are objective and the conclusion to be drawn from the proved basic facts does not require special technical knowledge or science, the use of expert testimony is not legally necessary.
Courts generally limit such cases to those where the causal connection is clearly apparent from the injury itself and the circumstances surrounding it or where the cause of the injury relates to matters of common experience, knowledge and observation of laymen.
Evidence of an obvious wound, cut, or bruise, or an immediate bleeding, would justify an inference by a layman that the injury was caused by the accident. . . . In Yount v. Seager, 181 Neb. 665, 150 N.W.2d 245, we said: `The question of the necessity of expert evidence to warrant submission to the jury of the issue as to the permanency of an injury or as to future pain or suffering depends, in large measure, upon the character of the injury involved, whether it is subjective or objective.
Where the claimed injuries are of such a character as to require skilled and professional persons to determine the cause and extent thereof, the question is one of science. Such a question must necessarily be determine from the testimony of skilled professional persons and cannot be determined from the testimony of unskilled witnesses having no scientific knowledge of such injuries. When symptoms from which personal injury may be inferred are subjective only, medical testimony is required.214 N.W.2d at 243-44. See also Doe v. Zedek, 587 N.W.2d 885, 891 (Neb. 1999) (stating that where the cause of an alleged injury is not objective, but rather is subjective, because it is not plainly apparent, then the cause and extent of the injury must be established by expert medical testimony); and Turek v. Saint Elizabeth Community Health Center, 488 N.W.2d 567, 573 (Neb. 1992) (stating that "[w]here the character of an alleged injury is not objective, the cause and extent of the injury must be established by expert medical testimony.")
While the elements of a negligence claim are different than the elements of a private nuisance claim, the proof required to establish medical causation is the same. I conclude that expert medical testimony is required to establish the cause and extent of any permanent injuries that are alleged by the Plaintiffs in these consolidated cases. Without expert assistance, no lay person would be able to determine whether a personal injury that is claimed by one of the Plaintiffs was either caused by IBP's actions or is permanent in nature.
For example, Nebraska has adopted the standards set forth in the Restatement (Second) of Torts, including that liability may be imposed for a private nuisance "only to those to whom it causes significant harm." Restatement (Second) of Torts, § 821F, Comment c. See, Kopecky v. National Farms, Inc., 510 N.W.2d 41, 47 (Neb. 1994). "Significant harm" is defined as a "harm of importance, involving more than slight inconvenience or petty annoyance." Restatement (Second) of Torts, § 821F, cmt. c.
Plaintiffs have acknowledged that the outcome of this motion is dependent upon the Court's ruling with regard to the scope of Dr. Ammann's testimony. Because the Court has ruled that Dr. Ammann may not offer an opinion that any of the Plaintiffs' symptoms or injuries were caused by exposure to hydrogen sulfide gas, and because the Court has denied the Plaintiffs' request to redesignate rebuttal witnesses, the Plaintiffs are left without any medial expert to testify as to the cause of and extent of the Plaintiffs' personal injuries. For these reasons, IBP's motion for partial summary judgment on the issue of medical causation relative to the Plaintiffs' alleged permanent injuries is granted.
IT IS ORDERED:
1. IBP, Inc.'s Motion for Partial Summary Judgment (Medical Causation) (8:00CV527, Filing No. 263; 8:00CV529, Filing No. 256; 8:00CV530, Filing No. 257; 8:00CV531, Filing No. 259; 8:00CV532, Filing No. 258; 8:00CV533, Filing No. 265; 8:00CV534, Filing No. 263; 8:00CV535, Filing No. 261; 8:00CV536, Filing No. 256; 8:00CV537, Filing No. 259; 8:01CV27, Filing No. 264; 8:01CV28, Filing No. 248; 8:02CV293, Filing No. 180) is granted;
2. Judgment in favor of the Defendant IBP, Inc., on Plaintiffs' claims that IBP proximately caused any permanent personal injury to them shall be entered separately, at the conclusion of the cases.