Court of Appeals of Nebraska Refuses to Apply the “Common Knowledge” Exception to the Requirement of Expert Evidence for Proximate Causation in Professional Negligence Cases

Generally, expert testimony is required to prove proximate causation in the professional negligence context (e.g., proving that a physician proximately caused a patient’s injuries). That said, many states recognize a “common knowledge” exception, pursuant to which proximate causation “may be inferred without expert testimony if the causal link between the defendant’s negligence and the plaintiff’s injuries is sufficiently obvious to laypersons.” The recent opinion of the Court of Appeals of Nebraska in Mancinelli v. Hillcrest Millard, LLC, 33 Neb.App. 544 (Neb. App. 2025), provides a couple of useful examples.

In Mancinelli, a patient’s daughter brought a negligence and wrongful death action against the operator of nursing facility after her mother’s death in the hospital where she was transferred after she tested positive for COVID-19 at the facility. As support for their claim, both the plaintiff and her sister

averred that on May 10, 2020, while they were visiting [their mother, they observed Hillcrest staff members in [their mother]’s room without gloves or masks on. [They] stated that the staff members were interacting with [their mother] and handling her medications.  [The sisters] also stated that [their mother]’s room was in disarray with tissues and trash littering the floor.

The plaintiff, however, presented no expert evidence that her mother contracted COVID due to deviations from the applicable standard of care.

After the trial court granted the defendant’s motion for summary judgment, the plaintiff cited the “common knowledge” exception the requirement of expert testimony. The Court of Appeals of Nebraska acknowledged the existence of the doctrine, noting the following:

Although expert testimony is almost always required to prove proximate causation, the common knowledge exception applies to proximate causation in professional negligence cases….Under the exception, causation may be inferred without expert testimony if the causal link between the defendant’s negligence and the plaintiff’s injuries is sufficiently obvious to laypersons…This exception is limited to cases of extreme and obvious misconduct….Examples include failure to remove a surgical instrument from a patient’s body following a procedure or amputating an incorrect limb….The Nebraska Supreme Court has been reluctant to apply this exception in cases where the alleged professional misconduct was less than obvious without some degree of technical knowledge.

The court then found that the alleged misconduct in this case was less than obvious and denied the plaintiff’s appeal, finding that, “[h]ere, there is no evidence of exactly how Kruizenga came to be infected with COVID-19.”

-CM