Sanchez v. Derby

Fahrnbruch, J.,

dissenting.

I must respectfully dissent from the majority opinion on rehearing. As pointed out in the original majority opinion and in my concurrence in Sanchez v. Derby, 228 Neb. 497, 423 N.W.2d 420 (1988), Dr. Golden was prepared to testify

The most probable causes [sic] of [the plaintiff’s] behavioral change is either (1) a combination of a post traumatic stress disorder and a reaction to chronic pain in a previously marginal personality or (2) an organic affective disorder secondary to mild subcortical brain injury (around the orbital frontal areas) which can occur in accidents

such as that in whi< the plaintiff was involved. (Emphasis supplied.)

Dr. Golden’s testimony would have also been

While it is possible at this time to state firmly that one of these causes is indeed the most probable cause of her [plaintiff’s] problems as the problems clearly date from *786the time of the accident as well as follow the pattern expected in such disorders, it is not possible to choose between them at present.

Under Dr. Golden’s second “probable cause” of plaintiff’s problems (mild subcortical brain injury), he only theorizes that the brain injury can occur in accidents, not that there was a reasonable degree of certainty that it did occur in the accident in which the plaintiff was involved.

The trial court was correct in finding that to allow Dr. Golden’s opinion testimony with respect to the cause of Sanchez’ behavioral change would be to invite a jury to speculate on the proximate cause of Sanchez’ behavioral problems.

The ruling of the trial court should be affirmed.

Boslaugh and Caporale, JJ., join in this dissent.