IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NELSON V. JANTZE
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
PHYLLIS L. NELSON, APPELLANT,
V.
LINDA K. JANTZE, PERSONAL REPRESENTATIVE OF THE
ESTATE OF SAVANA L. RILEY, ET AL., APPELLEES.
Filed January 20, 2015. No. A-13-1018.
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed
in part, and in part reversed and remanded for further proceedings.
Bernard J. Glaser, Jr., for appellant.
Robert B. Seybert and Gail S. Perry, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for
appellees.
IRWIN, INBODY, and PIRTLE, Judges.
INBODY, Judge.
I. INTRODUCTION
Phyllis L. Nelson appeals the order of the Lancaster County District Court granting the
appellees’ motion for summary judgment and dismissing her complaint with prejudice.
II. STATEMENT OF FACTS
1. BACKGROUND
On the morning of February 11, 2010, Nelson was driving her vehicle northbound on
84th Street in Lincoln, Lancaster County, Nebraska, near O Street, at the intersection of 84th
Street and Blue Sky/Sunridge. Riley was driving a vehicle owned by her mother, Linda K.
Jantze, and her stepfather, Maurice D. Jantze, southbound on 84th Street and was approaching
the same intersection as Nelson from the opposite direction. Riley’s vehicle crossed the
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centerline of 84th Street and struck Nelson’s vehicle. Nelson was injured in the accident, which
injuries required medical treatment and rehabilitation. Riley also sustained injuries and fell into a
coma as a result of the accident.
2. PROCEDURAL HISTORY
Shortly after the accident, in March 2010, Nelson filed a complaint and an amended
complaint against Riley and the Jantzes alleging negligence and seeking $175,000 in damages,
future medical expenses, and any other general damages necessary. Riley and the Jantzes filed an
answer and motion to dismiss admitting that there was an accident, but alleging that the accident
was unavoidable as a result of an unforeseeable sudden loss of consciousness. In August 2010,
Riley passed away as a result of injuries she sustained in the accident. Nelson amended her
complaint to name the personal representative of Riley’s estate, Linda, in lieu of Riley herself.
Nelson’s second amended complaint further increased her request for damages to $1.5 million.
In April 2013, the Jantzes filed a motion for summary judgment, alleging that there was
no genuine issue of material fact. In response, Nelson filed a motion for partial summary
judgment, alleging that there was no genuine issue of material fact as to fault and liability and
that she was entitled to judgment on those issues. Nelson filed several other motions, including a
motion for sanctions and a motion in limine requesting that the Jantzes be prohibited from
calling or presenting the testimony of Dr. Lewiston Birkmann and Angela Morehouse regarding
sudden loss of consciousness or epileptic seizures. Nelson filed a second motion in limine
additionally requesting that the Jantzes be precluded from raising numerous other issues,
including references to jury verdicts in other parts of the country, the use of the word “lottery,”
any statements regarding opposing counsel’s past experiences, and statements regarding living in
a “sue happy society” or “litigious society,” allegations that Nelson was contributorily negligent
or had aggravated a preexisting condition, any statement or evidence regarding whether Riley
died in the collision, the receipt of insurance benefits by Nelson, and anything else not properly
produced through discovery. Nelson filed a third and final motion in limine requesting the
preclusion of any mention of Nelson’s injuries or that she had insurance coverage for those
injuries.
3. HEARING ON MOTIONS IN LIMINE AND SUMMARY JUDGMENT
A hearing was held on the pending matters, and evidence was submitted to and received
by the district court. At the hearing, Nelson withdrew the motion for sanctions and her third
motion in limine. During the hearing, evidence was submitted that Morehouse was driving
directly behind Riley at the time of the accident. Morehouse witnessed Riley slump over just
prior to the accident such that Riley’s head went down to the right side and dangled in a manner
that indicated to Morehouse that Riley was not conscious. Morehouse observed Riley’s vehicle
veer into oncoming traffic and stated that she did not see any turn signals or brake lights or hear
any tires screeching prior to the impact of Riley’s vehicle into oncoming traffic.
Evidence was also submitted that in November 2006, 4 years before the accident, Riley
experienced a seizure which caused her to lose consciousness. At that time, Riley was taken to
the emergency room and, thereafter, underwent testing by a neurologist, Dr. Birkmann. Dr.
Birkmann’s testing showed that Riley likely suffered from a seizure disorder, and he prescribed
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her an anticonvulsant medication. In 2008, Riley tapered off her medication and ultimately
stopped refilling her prescription in September. Dr. Birkmann gave no indication that Riley
suffered any additional seizures between November 2006 and the accident.
Dr. Birkmann could not identify whether or not Riley initially had a seizure in 2010,
which caused the collision, or if she suffered a seizure as a result of the head injury she sustained
in the collision. In his deposition, Dr. Birkmann testified that from the witness’ observations of
Riley slumping over, “[t]hey don’t describe a seizure, per se, just slumped over the steering
wheel, so it’s hard to say.” Dr. Birkmann also indicated that it was not reasonable for Riley to
know that she would have any additional seizure episodes at the time of the accident in 2010,
specifically stating that “if she’s been off of medication for that long and had not had any
[seizures], then I would assume that she probably won’t ever have one again.”
The deposition of Dr. Robert McKeeman was also received at the hearing. Dr.
McKeeman is a board-certified family physician who began treating Riley just after she was born
in 1990. Dr. McKeeman testified that Riley’s birth mother used cocaine when she was pregnant
with Riley and that Riley was diagnosed with fetal alcohol syndrome. Dr. McKeeman continued
to serve as Riley’s family physician over the years, treating Riley for various illnesses as many
children experience. In 2005, Riley was seen for headaches. In August 2010, Dr. McKeeman
testified that Riley was suffering from significant traumatic brain injury and decerebrate
neurological dysfunction from the injury she sustained in February 2010, in the collision with
Nelson.
4. DISTRICT COURT’S ORDER
The district court overruled and denied Nelson’s motion for partial summary judgment,
denied Nelson’s first motion in limine, and found that the parties had stipulated to each of the
requests in Nelson’s second motion in limine, except for paragraph 3 which was overruled and
denied and paragraph 6 which was withdrawn by Nelson. As to the Jantzes’ motion for summary
judgment, the district court relied upon Storjohn v. Fay, 246 Neb. 454, 519 N.W.2d 521 (1994),
in finding that Nebraska allows for a loss of consciousness defense under the rationale that where
a driver is suddenly deprived of his or her senses by blacking out, the driver cannot comprehend
the nature and quality of those acts. The district court found that in accordance with Storjohn v.
Fay, supra, if the evidence was conflicting as to whether the accident was caused by a driver’s
sudden loss of consciousness and whether that loss was unforeseen was a question of fact for the
jury; but, if the evidence pointed to only one reasonable conclusion, it was a question of law for
the court.
Regarding loss of consciousness, the district court found that contrary to Nelson’s
assertions, expert testimony was not necessary to show loss of consciousness, which evidence
was undisputed through the testimony of Morehouse. The district court found that expert
testimony also corroborated loss of consciousness. As to foreseeability, the district court found
that the undisputed facts demonstrated that the sudden loss of consciousness was not foreseeable
because there was no evidence to show that Riley could have foreseen losing consciousness and
there was no evidence that Riley had any seizure or seizure activity since November 2006. The
district court concluded that the undisputed material facts demonstrated that Riley suffered a
sudden unforeseeable loss of consciousness and that the affirmative defense applied as a matter
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of law. The district court granted the Jantzes’ motion for summary judgment and dismissed
Nelson’s complaint with prejudice.
Nelson filed a motion for new trial, reconsideration, and rehearing, alleging, among other
things, that the district court failed to address her “Shaffersman/Carlson/Daubert [sic] motion
(motion in limine one).” The district court entered an order finding that it was not required to
engage in a Daubert/Schafersman analysis, because the facts supported the sudden loss of
consciousness defense and because there was no particularized scientific methodology or
knowledge that would trigger the analysis; that there was no evidence to suggest anything other
than that Riley suffered a loss of consciousness immediately before the accident; and that
Morehouse was not testifying as an expert. The district court overruled Nelson’s motion, and it is
from that order that she has timely appealed to this court.
III. ASSIGNMENTS OF ERROR
Nelson assigns that the district court erred by granting the Jantzes’ motion for summary
judgment based upon evidence that Riley sustained a sudden loss of consciousness and
foreseeability. Nelson also assigns that the district court erred in admitting the testimony of
Morehouse and by failing to hold a Daubert/Schafersman hearing regarding the testimony of Dr.
Birkmann.
IV. STANDARD OF REVIEW
An appellate court will affirm a lower court’s grant of summary judgment if the pleadings
and admissible evidence offered at the hearing show that there is no genuine issue as to any
material facts 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. Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d
181 (2014). In reviewing a summary judgment, the court views the evidence in the light most
favorable to the party against whom the judgment was granted and gives that party the benefit of
all reasonable inferences deducible from the evidence. Id.
V. ANALYSIS
1. NEB. REV. STAT. § 27-403 (REISSUE 2008)
Nelson first argues that the district court erred in allowing Morehouse to testify over
objection, because Morehouse’s testimony was inadmissible under § 27-403.
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence
is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. State v. DeJong, 287 Neb. 864, 845
N.W.2d 858 (2014). Determining the relevancy of evidence is a matter entrusted to the discretion
of the trial court. Id.
Section 27-403 provides that “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Relevant evidence means evidence having any tendency to
make the existence of any fact that is of consequence to that determination of the action more
probable or less probable than it would be without the evidence. State v. McPherson, 266 Neb.
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734, 668 N.W.2d 504 (2003). An analysis under § 27-403 requires a court to weigh the probative
value of the particular evidence against the danger of unfair prejudice. State v. Epp, 278 Neb.
683, 773 N.W.2d 356 (2009).
In her first motion in limine, Nelson argued that Morehouse’s opinion that just prior to
the collision, Riley was slumped over at the wheel of her vehicle was irrelevant, as the sudden
loss of consciousness defense did not apply to the facts of the case. We disagree, this testimony
was directly relevant to whether or not the sudden loss of consciousness was available to Riley’s
defense.
Morehouse was traveling in her vehicle behind Riley at the time of the accident.
Morehouse observed Riley slump over at the wheel and observed Riley’s vehicle veer into the
oncoming traffic lane at that time. The probative value of Morehouse’s testimony is not
outweighed by any danger of unfair prejudice, confusion of the issues, or misleading the jury.
Morehouse’s testimony does not attempt to give any expert medical testimony, nor does she
make any ultimate conclusions regarding the accident. Morehouse was the sole witness of what
happened to Riley immediately prior to the collision, and her testimony is clearly relevant to the
case. Simply because Nelson believes that Morehouse’s testimony is irrelevant does not make it
so. The district court did not abuse its discretion by allowing Morehouse’s testimony, by denying
Nelson’s motion in limine, and in considering the testimony for the motion for summary
judgment. This assignment of error is without merit.
2. DAUBERT/SCHAFERSMAN ANALYSIS
Nelson argues that the district court also erred by failing to engage in a
Daubert/Schafersman analysis with regard to Dr. Birkmann’s expert testimony.
A trial judge acts as a gatekeeper for expert scientific testimony and must determine (1)
whether the expert will testify to scientific evidence and (2) if that testimony will be helpful to
the trier of fact. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993); Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
This entails a preliminary assessment whether the reasoning or methodology underlying the
testimony is scientifically valid and whether that reasoning or methodology may be properly
applied to the facts in issue. Id.
Nelson argues that Dr. Birkmann failed to base his opinion on medical records of another
treating doctor and therefore, did not give a valid medical opinion that would assist the trier of
fact. Upon our review of the record, however, Dr. Birkmann was not required to base his opinion
on that of another treating doctor. Dr. Birkmann was Riley’s treating neurologist and had treated
her from 2006 through the accident. Nelson does not allege that Dr. Birkmann was not qualified
to give expert testimony, and there is no dispute in the record as to his medical qualifications or
ability to give expert medical testimony generally. Dr. Birkmann personally treated Riley on
several occasions and gave his opinion based upon that treatment. There is no merit to Nelson’s
argument that the district court erred by failing to engage in a Daubert/Schafersman analysis,
which was not necessary in this situation for determining the admissibility of Dr. Birkmann’s
expert medical opinion.
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3. SUMMARY JUDGMENT
Nelson argues that the district court erred in granting the Jantzes’ motion for summary
judgment. Nelson’s initial complaint alleged that Riley was negligent, and in response, Riley
pled the affirmative defense of sudden loss of consciousness.
In order to recover in a negligence action, a plaintiff must show a legal duty owed by the
defendant to the plaintiff, a breach of such duty, causation, and damages. Gaytan v. Wal-Mart,
289 Neb. 49, 853 N.W.2d 181 (2014); A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784
N.W.2d 907 (2010). The duty in a negligence case is to conform to the legal standard of
reasonable conduct in the light of the apparent risk. Id. The question whether a legal duty exists
for actionable negligence is a question of law dependent on the facts in a particular situation. Id.
Sudden or momentary loss of consciousness while driving is a complete defense to an
action based on negligence if such a loss of consciousness was not foreseeable. See Storjohn v.
Fay, 246 Neb. 454, 519 N.W.2d 521 (1994). An exception to this general rule exists where a
person knows that he is suffering from an illness which will likely cause his loss of
consciousness. Id.
Where the plaintiff has established a prima facie case of negligence, the burden shifts to
the defendant to establish the loss of consciousness defense. Id. In such a case, the defendant’s
burden is twofold. First, the defendant must present sufficient evidence to establish that he
suffered a sudden loss of consciousness prior to the accident and, second, that the loss of
consciousness was not foreseeable. Id.
In Storjohn v. Fay, 246 Neb. at 460, 519 N.W.2d at 527, the Nebraska Supreme Court
found:
In determining whether an issue presents a question of law for the court or a
question of fact for the jury, it has been held that where the evidence is conflicting as to
whether the accident was caused by the driver’s sudden loss of consciousness and
whether the loss of consciousness was unforeseen, it is a question of fact to be
determined by the jury. Watts [v. Smith, 226 A.2d 160 (D.C. App. 1967)]. However, if the
evidence points to only one reasonable conclusion, it is a question of law for the court.
Tannyhill v. Pacific Motor Trans. Co., 227 Cal. App. 2d 512, 38 Cal. Rptr. 774 (1964).
See Eleason [v. Western Casualty & Surety Co., 254 Wis. 134, 35 N.W.2d 301 (1948)].
Cf. Mackiewicz v. J.J. & Associates, 245 Neb. 568, 514 N.W.2d 613 (1994) (as a matter
of law, when reasonable persons can reach only one conclusion, questions of fact which
would normally be submitted to a jury become questions of law for the court to decide).
In granting the motion, the district court relied upon Storjohn v. Fay, supra, wherein an
automobile injury victim sued the driver of another vehicle for personal injury when the driver’s
vehicle struck the victim’s vehicle. In that case, the two vehicles were involved in a head-on
collision and the plaintiff alleged that the collision was caused by the defendant’s negligence.
The defendant denied any negligence and pled that the collision was the result of an unavoidable
accident as a result of a blackout he suffered while driving. Id. The defendant had been
diagnosed with epilepsy several years before. Id. A jury trial was held on the matter, during
which the trial court gave the jury an instruction on the defense of unavoidable accident. Id. The
jury returned a verdict for the defendant. Id. The plaintiff appealed to the Nebraska Supreme
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Court alleging that the defendant failed to present expert testimony regarding epilepsy and his
loss of consciousness, and that the defendant failed to present evidence that his loss of
consciousness was not foreseeable. Id. The Supreme Court held that the defendant had failed to
establish the affirmative defense based upon a loss of consciousness; that, even assuming loss of
consciousness, the defendant’s past history of blackouts made it foreseeable that the defendant
would lose consciousness while driving a motor vehicle; and that operation of a motor vehicle
with knowledge that the defendant could become unconscious at any time was negligence per
se. Id.
In the present case, we find that Storjohn v. Fay, supra, is instructive, but does not
directly address the same set of circumstances, because although dealing with identical issues,
i.e., negligence, loss of consciousness, and a past history of seizure disorder, that case involved a
full trial and the issues were submitted to the jury. In this case, the matter is only in the pretrial
stages and was submitted to the district court on motions for summary judgment. Therefore, in
addition to Storjohn v. Fay, supra, and the instructions of the Nebraska Supreme Court, we also
look to cases outside of Nebraska which involve the submission of the matter of loss of
consciousness at the motion for summary judgment stage and not at the jury trial stage. See,
Shiner v. Ralston, 64 A.3d 1 (Pa. Super. 2013) (material issues of fact as to whether defendant
driver’s medical emergency was unforeseen and whether defendant driver established sudden
medical emergency defense precluded grant of summary judgment to estate of defendant driver
on plaintiff’s negligence claim); Abreu v. F.E. Development Recycling, Inc., 35 So. 3d 968 (Fla.
App. 2010) (evidence of history of aneurysm, medical reports, and medical records raised
questions of fact as to whether driver’s loss of consciousness was foreseeable); Karl v. Terbush,
63 A.D.3d 1359, 881 N.Y.S.2d 207 (2009) (issues of fact remain and summary judgment was not
proper when testimony and medical records established that 1 month prior to collision, defendant
experienced dizziness, lightheadedness, and weakness, which increased in frequency); Feagle v.
Purvis, 891 So. 2d 1096 (Fla. App. 2004) (genuine issue of material fact, whether driver’s loss of
consciousness due to heart issues, was foreseen or foreseeable, precluded summary judgment);
Cooke v. Grigg, 124 N.C. App. 770, 478 S.E.2d 663 (1996) (question of driver’s blackout was
foreseeable, given his medical history, and was properly submitted to jury); McCall v. Wilder,
913 S.W.2d 150 (Tenn. 1995); Lutzkovitz v. Murray, 339 A.2d 64 (Del. 1975) (where defendant
adduces evidence supporting blackout defense, and where plaintiff adduces evidence of
defendant’s medical history that bears on whether defendant should reasonably have foreseen
possible loss of control, issue of foreseeability is for jury); Renell v. Argonaut Co., 148 Colo.
154, 365 P.2d 239 (1961) (where driver claimed he blacked out due to lack of sleep, it was
exclusively within province of jury to determine whether he knew or should have known that he
might black out or faint because of exhaustion). Compare, Beasley v. Amburgy, 70 S.W.3d 74
(Tenn. App. 2001) (granting of summary judgment for defendants proper where loss of
consciousness was not reasonably foreseeable).
(a) Loss of Consciousness
Nelson argues that the district court erred in finding that Riley sustained a sudden loss of
consciousness and granting summary judgment on that basis.
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Riley slipped into a coma as a result of the injuries sustained in the accident and did not
awaken from that condition, eventually passing away, so no light can be shed on her own
experience before the collision. However, there was eyewitness testimony that confirmed that
Riley lost consciousness prior to the collision, and also medical opinion that Riley suffered a loss
of consciousness before the collision. Nelson appears to rely on the fact that there is no medical
proof or testimony that Riley’s loss of consciousness was the result of a seizure. However, that is
not required, and the only issue is whether the defendant did in fact lose consciousness. See
Storjohn v. Fay, 246 Neb. 454, 519 N.W.2d 521 (1994). “The objective nature and effect of
‘blacking out’ or losing consciousness is plainly apparent, and therefore, no expert testimony is
required.” Id. at 462, 519 N.W.2d at 528.
The undisputed evidence presented to the district court was that Morehouse testified she
was driving her vehicle behind Riley’s immediately before Riley’s collision with Nelson, when
Morehouse observed Riley
slumped down to the right side, and her head was kind of dangling, and then her vehicle
slowly started to veer into the center lane, which would be the turn lane. And then it
continued into the northbound inside lane, and that’s where they collided head-on, in that
northbound lane.
Morehouse further explained that she used the term “slump” because it did not appear that Riley
was bending down toward the radio or to grab something.
Furthermore, the record contains the opinion of Dr. Deepak Madhavan that, in agreement
with Dr. Birkmann’s opinion, it cannot be definitely stated that Riley had a seizure at the time of
the collision, but that “she did suffer some alteration of consciousness prior to the collision.”
In our review of the evidence in the light most favorable to Nelson, and giving her the
benefit of all reasonable inferences deducible from the evidence, we find no genuine issue of
material fact or the ultimate inference drawn from the fact that Riley did suffer sudden loss of
consciousness immediately before the collision with Nelson. The district court did not err in this
determination.
(b) Foreseeability
Second, Nelson argues that the district court erred in finding that the evidence established
that Riley’s loss of consciousness was not reasonably foreseeable as a matter of law. Nelson
contends that although the evidence was insufficient to show that Riley suffered an epileptic
seizure and loss of consciousness, there existed a genuine issue of material fact regarding
foreseeability based upon evidence of Morehouse’s description of Riley’s movements, Riley’s
previous diagnosis for a seizure disorder, and Riley’s having stopped taking her antiseizure
medication.
In establishing the loss of consciousness defense, the issue of foreseeability is crucial.
The defense is not available where a driver was put on notice of facts sufficient to cause an
ordinary and reasonable person to anticipate that his or her driving might likely lead to injury to
others. Storjohn v. Fay, supra. Where it is undisputed that the defendant knew that he or she was
subject to attacks which could result in a sudden loss of consciousness, the evidence is such that
the defendant’s loss of consciousness was foreseeable. Id.
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In Storjohn v. Fay, supra, the Nebraska Supreme Court found that there was no testimony
in the record to support a conclusion that the driver’s loss of consciousness was not reasonably
foreseeable. The driver knew he was subject to seizures and knew that the medication he was
taking did not control his seizures. Id.
In Tennessee, the question of liability when a motor vehicle accident caused by a driver’s
sudden loss of consciousness when the driver suffered a seizure was addressed in McCall v.
Wilder, 913 S.W.2d 150 (Tenn. 1995). The trial court granted summary judgment in favor of the
defendant. The Tennessee Supreme Court set forth a number of “pertinent, nonexclusive
considerations” to assist courts in the evaluation of foreseeability of sudden loss of
consciousness in a driving situation:
[T]he extent of the driver’s awareness or knowledge of the condition that caused the
sudden incapacity; whether the driver had sought medical advice or was under a
physician’s care for the condition when the accident occurred; whether the driver had
been prescribed, and had taken, medication for the condition; whether a sudden
incapacity had previously occurred while driving; the number, frequency, extent, and
duration of incapacitating episodes prior to the accident while driving and otherwise; the
temporal relationship of the prior incapacitating episodes to the accident; a physician’s
guidance or advice regarding driving to the driver, if any; and medical opinions regarding
the nature of the driver’s condition, adherence to treatment, foreseeability of the
incapacitation, and potential advance warnings which the driver would have experienced
immediately prior to the accident.
Id. at 156. The McCall court applied these factors to the case, which included stipulated facts
that the defendant had previously suffered seizures, was aware that he had a seizure disorder that
could cause unconsciousness, and had recently been diagnosed with a brain tumor which was
corroborated with a physician’s affidavit opining that driving in such a condition resulted in the
defendant’s taking an unreasonable risk. The court found that summary judgment was not
appropriate because there was a question of material fact as to whether it would be foreseeable to
a reasonable person that he would lose consciousness while driving. Id.
In the majority of the cases cited previously in this opinion from around the country, most
decisions reversing the order of the trial court granting motions for summary judgment in favor
of the defendant are based upon the issue of foreseeability and that it should be a question of fact
submitted to the jury. In this case, the district court found that the undisputed facts showed that
Riley’s sudden loss of consciousness was not foreseeable. The district court determined that the
only evidence regarding foreseeability was that Riley was epileptic, not that she could foresee
losing consciousness because she had suffered one seizure in 2006.
The evidence in the record indicates that Riley was born with fetal alcohol syndrome
which may or may not lead to various kinds of conditions, including seizure disorders. In 2006,
Riley suffered a seizure and lost consciousness. Riley was treated and prescribed anticonvulsion
medicine, which she took for a while, but eventually tapered off and discontinued altogether by
2008. There was no indication in the record that Riley had or had not suffered from any further
seizures since that time. Dr. Birkmann opined that it was not reasonable for Riley to know that
she would have any additional seizure episodes at the time of the accident in 2010, specifically
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stating that “if she’s been off of medication for that long and had not had any [seizures], then I
would assume that she probably won’t ever have one again.”
However, Dr. Madhavan opined that Riley suffered from “an elevated risk of having
seizures when compared to the general population, particularly off of medication.” Dr.
Madhavan opined that it was possible for patients to grow out of epilepsy as the brain matures,
and he stated that he supported patients attempting to wean off of seizure medications after 3 to 4
years of “seizure freedom.” Further, Dr. Madhavan explained that such a patient could still
experience seizures, which especially in Riley’s case as a child with an in utero history and fetal
drug and alcohol exposure, would put her at continued risk for seizure activity.
Thus, it appears that there exists a genuine issue of material fact as to whether Riley’s
loss of consciousness was foreseeable. The district court erred in determining this issue as a
matter of law and thereby erred in granting the Jantzes’ motion for summary judgment. The
order of the district court is reversed and the cause is remanded for further proceedings
consistent with this opinion.
VI. CONCLUSION
In sum, we conclude that the district court did not abuse its discretion by allowing
Morehouse’s testimony to be received over Nelson’s § 27-403 objection and that a
Daubert/Schafersman analysis was not required as to Dr. Birkmann’s testimony. We further find
that the district court did not err in granting the Jantzes’ motion for summary judgment as to the
loss of consciousness, but find that a genuine issue of material fact exists regarding the
foreseeability of Riley’s loss of consciousness. Therefore, we affirm the order of the district
court in part and in part reverse with regard to the issue of foreseeability, and remand the cause
to the district court for further proceedings.
AFFIRMED IN PART, AND IN PART REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS.
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