King v. Burlington Northern Santa Fe Ry. Co.

CONCLUSION
[16] Because the county court lacked the authority to exer-
cise its subject matter jurisdiction to confirm the arbitration
award, the district court and this court also lack the power to
determine the merits of the issue presented to the county court.
We withdraw our previous judgment of summary affirmance.
Even though an appellate court may lack jurisdiction to hear
the merits of the case, the appellate court does have authority
to vacate a lower court’s order, and, if appropriate, remand the
case for further proceedings, when such order was entered by
a court lacking jurisdiction and was thus void. Goeser v. Allen,
14 Neb. App. 656, 714 N.W.2d 449 (2006). We therefore vacate
the decision of the district court, and remand the cause with
directions that the district court is to remand the cause to the
county court with instructions to dismiss the complaint for lack
of subject matter jurisdiction. See Merrill v. Griswold’s, Inc.,
270 Neb. 458, 703 N.W.2d 893 (2005).
J udgment vacated , and cause
remanded with directions .
vicki king , special administratrix of the estate
of B radley B. king , deceased , appellant ,
v . B urlington northern santa fe
railway company , a delaware
corporation , appellee .
746 N.W.2d 383
Filed March 11, 2008. 	No. A-05-1520.
1. Federal Acts: Railroads: Claims: Courts: Jurisdiction. Courts of the United
States and courts of the several states have concurrent jurisdiction over claims
controlled by the Federal Employers’ Liability Act.
2. Federal Acts: Railroads: Claims: Courts. In disposing of a claim controlled
by the Federal Employers’ Liability Act, a state court may use procedural rules
applicable to civil actions in the state court unless otherwise directed by the act,
but substantive issues concerning a claim under the Federal Employers’ Liability
Act are determined by the provisions of the act and interpretative decisions of the
federal courts construing the Federal Employers’ Liability Act.
3. Jurisdiction. Unlike substantive issues, procedural matters are governed by the
law of the forum.
544 	16 NEBrASkA AppELLAtE rEpOrtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

4. Rules of Evidence. In proceedings where the Nebraska rules of evidence apply,
the admission of evidence is controlled by rule and not by judicial discretion,
except where judicial discretion is a factor involved in assessing admissibility.
5. Trial: Expert Witnesses: Appeal and Error. A trial court’s ruling in receiving or
excluding an expert’s testimony which is otherwise relevant will be reversed only
when there has been an abuse of discretion.
6. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
7. Trial: Courts: Expert Witnesses. Under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v.
Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), the trial court acts as a gate-
keeper to ensure the evidentiary relevance and reliability of an expert’s opinion.
8. Courts: Expert Witnesses. In determining the admissibility of an expert’s testi-
mony, a trial court may consider nonexclusive criteria in evaluating the reliability
of a particular theory to include (1) whether the theory or technique can be, and
has been, tested; (2) whether the theory or technique has been subjected to peer
review and publication; (3) whether there is a known or potential rate of error;
(4) whether there are standards controlling the technique’s operation; and (5)
whether the theory or technique enjoys general acceptance within the relevant
scientific community.
9. Physicians and Surgeons. In performing a differential diagnosis, a physician
begins by “ruling in” all scientifically plausible causes of the patient’s injury. the
physician then “rules out” the least plausible causes of injury until the most likely
cause remains.
10. Summary Judgment: Motions for Continuance: Appeal and Error. A continu-
ance authorized by Neb. rev. Stat. § 25-1335 (reissue 1995) is within the discre-
tion of the trial court, whose ruling will not be disturbed on appeal in the absence
of an abuse of discretion.
Appeal from the District Court for Douglas County: w. mark
ashford, Judge. Affirmed.
richard J. Dinsmore and Jayson D. Nelson, of Law Offices of
richard J. Dinsmore, p.C., for appellant.
Nichole S. Bogen and James A. Snowden, of Wolfe, Snowden,
Hurd, Luers & Ahl, L.L.p., for appellee.
irwin , sievers, and moore, Judges.
moore, Judge.
INtrODUCtION
this is a Federal Employers’ Liability Act (FELA) case
brought in the district court for Douglas County in which
kINg v. BUrLINgtON NOrtHErN SANtA FE ry. CO. 	545
Cite as 16 Neb. App. 544

Bradley B. king claimed that he contracted multiple myeloma
due to his exposure to diesel exhaust during his 28-year employ-
ment with the Burlington Northern and Santa Fe railway
Company (BNSF). king died on April 9, 2002, and the matter
was revived in the name of his wife, Vicki king, the adminis-
tratrix of his estate. For the sake of simplicity, we hereinafter
refer to Vicki king also as “king.” the district court granted
BNSF’s motion in limine, excluding king’s expert witness from
testifying, and subsequently granted summary judgment in favor
of BNSF. Because we find no abuse of discretion in the district
court’s rulings, we affirm.
BACkgrOUND
king brought an action against BNSF under the FELA, 45
U.S.C. § 51 et seq. (2000), and the Locomotive Inspection
Act, now codified at 49 U.S.C. § 20701 et seq. (2000). king
alleged that he contracted multiple myeloma because of his
exposure to diesel exhaust fumes while working for BNSF
for 28 years. Multiple myeloma is a cancer affecting the
plasma cell, and according to the Multiple Myeloma research
Foundation, although multiple myeloma is treatable, it is an
incurable disease. See, generally, Multiple Myeloma research
Foundation, About Myeloma, http://www.multiplemyeloma.org/
about_myeloma/index.php (last visited Jan. 2, 2008). In his first
amended petition, king sought judgment against BNSF on his
first and second causes of action for present special damages of
$128,000, future special damages, any and all general damages
allowed by law, and costs.
On June 22, 2005, BNSF filed a motion in limine and for
summary judgment. BNSF sought exclusion of king’s expert
witness, Dr. Arthur Frank, alleging that Frank was unqualified
to render an opinion as to the cause of king’s multiple myeloma
because his opinion was based on subjective beliefs and unsup-
ported speculation without basis in scientific standards and
was based on insufficient facts or data in contravention of the
standard for admissibility of expert testimony.
At the hearing on BNSF’s motion in limine, the district
court received various exhibits, including two depositions of
king, a deposition of Frank, a deposition of BNSF’s expert,
546 	16 NEBrASkA AppELLAtE rEpOrtS

and numerous medical articles relied on by the parties’ experts.
Because the depositions, as well as the medical literature, relied
on by the parties are quite voluminous, we only set forth the
general arguments presented to the district court in this por-
tion of our opinion and only that portion of Frank’s testimony
necessary to our resolution of this appeal in the analysis sec-
tion below. king offered the testimony of Frank to support the
allegation that king’s exposure to diesel exhaust while working
for BNSF was the cause of king’s multiple myeloma. BNSF
offered the expert testimony of a different doctor, who opined
that diesel exhaust does not cause multiple myeloma. BNSF
argued that Frank’s expert medical opinion was unreliable and,
thus, not admissible. Specifically, BNSF argued that neither the
medical or scientific community nor any medical or scientific
literature supported Frank’s opinion. Conversely, king argued
that Frank’s opinion met the reliability standards set forth in
Nebraska case law and that thus, a fact finder should determine
the credibility of Frank’s opinion. After reviewing the evidence,
briefs, and arguments of the parties, the district court concluded
that Frank should be excluded from testifying, and it entered
an order on October 21, 2005, granting BNSF’s motion in
limine. We have set forth the specific details of the reasoning
employed by the court in reaching its decision in the analysis
section below.
On November 16, 2005, counsel for the parties appeared
before the district court for a further hearing, upon BNSF’s
motion for summary judgment. the court heard arguments from
counsel and also considered the evidence previously received at
the hearing on the motion in limine. the court also received a
written motion from king for additional time to designate expert
witnesses and heard arguments in connection with that motion.
On November 23, the court entered an order granting BNSF’s
motion for summary judgment and denying king’s motion for
additional time to designate expert witnesses. the court found
that BNSF had satisfied its burden of adducing evidence dem-
onstrating that there was no causal connection between king’s
employment, including his exposure to diesel exhaust, and his
subsequent development of multiple myeloma. Because king
had not satisfied the burden of producing evidence sufficient
kINg v. BUrLINgtON NOrtHErN SANtA FE ry. CO. 	547
Cite as 16 Neb. App. 544

to demonstrate that a genuine dispute of material fact existed,
the court granted BNSF’s motion for summary judgment. this
timely appeal followed.
ASSIgNMENtS OF ErrOr
king asserts that the district court erred in (1) excluding
Frank’s testimony and (2) failing to allow king to obtain other
expert testimony after disallowing Frank’s testimony.
StANDArD OF rEVIEW
[1-3] Courts of the United States and courts of the several
states have concurrent jurisdiction over claims controlled by
FELA. Wagner v. Union Pacific RR. Co., 11 Neb. App. 1,
642 N.W.2d 821 (2002). In disposing of a claim controlled
by FELA, a state court may use procedural rules applicable
to civil actions in the state court unless otherwise directed by
FELA, but substantive issues concerning a claim under FELA
are determined by the provisions of FELA and interpretative
decisions of the federal courts construing FELA. Id. Unlike
substantive issues, procedural matters are governed by the law
of the forum. Id.
[4-6] In proceedings where the Nebraska rules of evidence
apply, the admission of evidence is controlled by rule and not
by judicial discretion, except where judicial discretion is a fac-
tor involved in assessing admissibility. Epp v. Lauby, 271 Neb.
640, 715 N.W.2d 501 (2006). A trial court’s ruling in receiving
or excluding an expert’s testimony which is otherwise relevant
will be reversed only when there has been an abuse of discre-
tion. Id. An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. Id.
ANALySIS
Exclusion of Frank’s Testimony.
king alleges that as a result of his exposure to diesel exhaust
during his 28 years of employment by BNSF, he developed
multiple myeloma. On appeal, king asserts that the district
court erred in excluding Frank’s testimony regarding the cau-
sation of king’s multiple myeloma. In evaluating the court’s
548 	16 NEBrASkA AppELLAtE rEpOrtS

ruling on BNSF’s motion in limine, we must consider, under
our abuse of discretion standard, whether there was sufficient
evidence presented to allow Frank to opine that exposure to
diesel exhaust was the cause of king’s multiple myeloma.
[7] rule 702 of the Nebraska Evidence rules governs the
admissibility of expert opinion testimony. See Neb. rev. Stat.
§ 27-702 (reissue 1995). Under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb.
215, 631 N.W.2d 862 (2001), the trial court acts as a gatekeeper
to ensure the evidentiary relevance and reliability of an expert’s
opinion. Epp v. Lauby, supra. the Nebraska Supreme Court has
described a trial court’s evaluation of the admissibility of expert
testimony as essentially a four-step process, stating:
First, the court must determine whether the witness is
qualified to testify as an expert. If the expert is and it is
necessary for the court to conduct a Daubert analysis,
the court must next determine whether the reasoning or
methodology underlying the expert testimony is scientifi-
cally valid and reliable. Once the reasoning or methodol-
ogy has been found to be reliable, the court must next
determine whether the methodology was properly applied
to the facts in issue. Finally, the court determines whether
the evidence and opinions related thereto are more proba-
tive than prejudicial, as required under Neb. Evid. r. 403,
Neb. rev. Stat. § 27-403 (reissue 1995).
Epp v. Lauby, 271 Neb. at 646-47, 715 N.W.2d at 508.
[8] In determining the admissibility of an expert’s testimony,
a trial court may consider nonexclusive criteria in evaluating
the reliability of a particular theory to include (1) whether the
theory or technique can be, and has been, tested; (2) whether
the theory or technique has been subjected to peer review
and publication; (3) whether there is a known or potential
rate of error; (4) whether there are standards controlling the
technique’s operation; and (5) whether the theory or technique
enjoys general acceptance within the relevant scientific com-
munity. Epp v. Lauby, supra.
the district court found there was no question that Frank was
eminently qualified to give expert medical testimony. However,
kINg v. BUrLINgtON NOrtHErN SANtA FE ry. CO. 	549
Cite as 16 Neb. App. 544

the court found that Frank’s opinion was not based on reli-
able methodology and, thus, excluded Frank from testifying
for king. Frank opined that king’s exposure to diesel exhaust
fumes, which contain benzene, a known carcinogen, over a
28-year period of working for BNSF caused king to contract
multiple myeloma. Frank reached this conclusion by examining
the “‘totality of the information available regarding multiple
myeloma, benzene and diesel exhaust.’” In Frank’s opinion,
a person exposed to diesel exhaust and benzene above a base
level over an extended period of time can be expected to be at
risk to contract multiple myeloma because as the level of expo-
sure increases, the risk increases. given the length of time king
was exposed to diesel exhaust, Frank concluded to a reasonable
degree of medical certainty that this exposure was the cause of
king’s multiple myeloma.
In king’s brief on appeal, numerous studies relied on by
Frank to support his opinion are cited. king similarly cited
such studies to the district court, which concluded that Frank’s
reliance on the “‘totality of information regarding multiple
myeloma, benzene and diesel exhaust’” in opining diesel
exhaust exposure causes multiple myeloma was not reliable
and that Frank’s testimony was thus not admissible under rule
702 and the standards set forth in Daubert and Schafersman.
the district court observed that Frank’s methodology in reach-
ing his conclusion that exposure to diesel exhaust is a risk fac-
tor in causing multiple myeloma was specifically rejected by
one court applying the same Daubert standards to determine
admissibility of expert testimony. See Missouri Pacific R. Co.
v. Navarro, 90 S.W.3d 747 (tex. App. 2002). In Navarro, the
court rejected one expert’s opinion, that a railroad employee
contracted multiple myeloma through her exposure to diesel
exhaust, after the court concluded that the expert’s methodol-
ogy was flawed.
In Navarro, that expert based his conclusion on two studies
dealing with diesel exhaust and multiple myeloma. However, the
Navarro court, discussing one study, stated that it was impos-
sible to tell whether the railroad workers in that study who died
from multiple myeloma were even exposed to diesel exhaust
and that the study noted that because there were only three such
550 	16 NEBrASkA AppELLAtE rEpOrtS

deaths, there was no statistically significant relationship between
railroad workers’ diesel exhaust exposure and multiple myeloma.
the Navarro court also noted that the second study did not con-
clude that diesel exhaust exposure caused multiple myeloma.
that expert also acknowledged that other studies concluded
that there was no relationship between multiple myeloma and
diesel exhaust, but he testified that he rejected those studies. the
Navarro court noted that although the expert based his opinion
on two studies, he chose to ignore the studies’ conclusions and
instead reached his own conclusion based on the data contained
in those studies. the court also rejected the expert’s opinion
because he was unable to state the level of exposure required
and was not involved in any research or publications dealing
with diesel exhaust exposure and multiple myeloma. Id.
the Navarro court further stated that all of the plaintiff’s
expert witnesses who testified that diesel exhaust exposure
causes multiple myeloma were unreliable. the court stated
that the experts’ opinions were subjective because they were
not supported by any studies, the methodology the experts
employed to reach their conclusions had no known potential
rate of error, and the experts’ opinions were not generally
accepted in the scientific community. the court pointed out that
the plaintiff’s experts were “alone in the scientific community
in their opinions that exposure to diesel exhaust causes multiple
myeloma.” Id. at 758.
In the present case, the district court concluded that Frank
offered the same opinion, based on the same methodology that
was rejected in Navarro. the court found that like the experts
in Navarro, Frank could not point to a study that concluded
exposure to diesel exhaust causes multiple myeloma. the court
further found that Frank could not state the level of exposure
to diesel exhaust that creates a risk for multiple myeloma.
the court observed that Frank was not directly involved in
any research or studies dealing with diesel exhaust exposure
and multiple myeloma and that he had simply relied on the
“‘totality of information regarding multiple myeloma, benzene
and diesel exhaust’” to reach his own subjective conclusions
regarding diesel exhaust exposure and multiple myeloma. the
court noted, as did the court in Navarro, that such method had
kINg v. BUrLINgtON NOrtHErN SANtA FE ry. CO. 	551
Cite as 16 Neb. App. 544

no known rate of error and resulted in a subjective opinion that
was not supported by any studies or accepted within the scien-
tific or medical community.
In Schafersman v. Agland Coop, 262 Neb. 215, 222, 631
N.W.2d 862, 871 (2001), the case in which the Nebraska
Supreme Court adopted the Daubert standard, the court rejected
expert opinion testimony that relied on “multiple mineral tox-
icity,” a theory that was not generally accepted or recognized
in any scientific field. the Schafersman court had concluded
under a former test based on Frye v. United States, 293 F. 1013
(D.C. Cir. 1923), that an expert’s opinion that “multiple mineral
toxicity” affected cows’ ability to produce milk was not reliable
and thus not admissible because multiple mineral toxicity was
not a generally accepted theory. 262 Neb. at 222, 631 N.W.2d at
871. In Schafersman, the court noted that the expert had neither
studied “multiple mineral toxicity” nor authored any publica-
tions concerning it, had cited no controlled studies related to
that theory, and also had conceded that there was no standard
to determine what levels of minerals would cause a toxic effect
on the cows. 262 Neb. at 221, 631 N.W.2d at 869.
On a subsequent appeal following remand for a new trial
in which the Daubert standard was applied, the Nebraska
Supreme Court found it unnecessary to consider whether the
expert’s revised theory of multiple mineral toxicity was reliable
under Daubert. In its opinion, see Schafersman v. Agland Coop,
268 Neb. 138, 681 N.W.2d 47 (2004), the Nebraska Supreme
Court noted that the lack of independent hard scientific support
for multiple mineral toxicity was not the only reason the trial
court gave for excluding the plaintiffs’ experts. the trial court
also excluded the experts because they had failed to perform a
reliable clinical analysis, specifically noting that none had con-
ducted a differential diagnosis. the Nebraska Supreme Court
found that the plaintiffs’ experts had not taken any substantive
steps to shore up the weaknesses previously identified in the
clinical analysis and accordingly found that the trial court did
not abuse its discretion in refusing to admit the expert opinion
testimony of the plaintiffs’ witnesses.
the district court in this case noted that a federal circuit
court of appeals applying the Daubert standard recently rejected
552 	16 NEBrASkA AppELLAtE rEpOrtS

expert opinion testimony based on methodology similar to that
employed by Frank. In McClain v. Metabolife Intern., Inc.,
401 F.3d 1233 (11th Cir. 2005), an expert testified that the
ephedrine combined with caffeine in a weight-loss product
caused heart attacks because ephedrine was classified within a
drug family that causes blood vessel constriction and increased
pulse rate and blood pressure, which over the long term can
lead to narrowing and inflammation of the blood vessels, which
can lead to heart attacks and strokes. the court ruled the opin-
ion inadmissible because it was speculative and because the
expert unjustifiably relied on consumer and government reports
and inferred conclusions from studies and reports not autho-
rized by those studies and reports. Id. the court also rejected
the expert’s opinion because he based his conclusion on a
comparison of ephedrine and its symptoms to another, similar
drug, phenylpropanolamine, and its symptoms. the court stated
that such “‘[s]ubjective speculation . . .’ does not provide good
grounds for the admissibility of expert opinions.” Id. at 1245.
the McClain court further noted that the expert’s reliance on
medical studies and reports was not justified, because the stud-
ies and reports did not authorize his opinions. For example,
although the expert concluded that ephedrine, when mixed with
caffeine, was the cause of heart attacks and strokes, the stud-
ies merely concluded that such a mix “‘in some patients may
cause toxicity’” and only “‘could increase the risk of adverse
effects.’” Id. at 1247 (emphasis omitted).
In this case, the district court found Frank’s methodology to
be similarly flawed. the court observed that Frank pointed to
numerous studies, some of which dealt with exposure to diesel
exhaust or benzene and to multiple myeloma, yet he could not
point to a single study that conclusively stated that exposure
to diesel exhaust or benzene causes multiple myeloma. the
court noted that one study relied on by Frank stated that diesel
exhaust “‘may be a risk factor,’” while another study stated
that “‘some studies of (engine exhaust) did show a significant
association with multiple myeloma.’” However, the district
court found that no study relied on by Frank reached the same
conclusion as Frank. the court concluded that ultimately, Frank
combined the data contained in the studies to reach his own
kINg v. BUrLINgtON NOrtHErN SANtA FE ry. CO. 	553
Cite as 16 Neb. App. 544

speculative and subjective conclusion that diesel exhaust expo-
sure causes multiple myeloma.
In short, the district court found that Frank’s opinion was
not reliable because his opinion was based on his own subjec-
tive conclusions and flawed methodology, because no medical
or scientific study had concluded that diesel exhaust exposure
causes multiple myeloma, and because the underlying method-
ology of Frank’s opinion was unreliable. It concluded that his
testimony was thus not admissible under the Nebraska Evidence
rules and expert testimony reliability standards established in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v.
Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
[9] Both before the district court and on appeal to this court,
king argues that Frank engaged in a differential diagnosis or
differential etiology, which the district court noted is a stan-
dard scientific technique under which a medical condition is
diagnosed by eliminating all the likely causes until the most
probable one is isolated. the technique has been accepted in
the medical community, and its use has been upheld in both
federal and Nebraska courts. See, Carlson v. Okerstrom, 267
Neb. 397, 675 N.W.2d 89 (2004); Boren v. Burlington Northern
& Santa Fe Ry. Co., 10 Neb. App. 766, 637 N.W.2d 910 (2002).
In Carlson, the Nebraska Supreme Court emphasized that an
expert’s opinion is not admissible simply because the expert
conducted a differential diagnosis, but that the court must deter-
mine whether the expert conducted a reliable differential diag-
nosis. In performing a differential diagnosis, a physician begins
by “ruling in” all scientifically plausible causes of the patient’s
injury. Id. the physician then “rules out” the least plausible
causes of injury until the most likely cause remains. Id.
In analyzing the second step of a differential diagnosis
under the Daubert/Schafersman framework, the question
is whether the expert had a reasonable basis for conclud-
ing that one of the plausible causative agents was the most
likely culprit for the patient’s symptoms. In other words,
the expert must be able to show good grounds for elimi-
nating other potential hypotheses.
Carlson, 267 Neb. at 414, 675 N.W.2d at 106.
554 	16 NEBrASkA AppELLAtE rEpOrtS

In Carlson, the court concluded that an expert’s opinion, that
a neurogenic bladder condition suffered by one of the plaintiffs
was caused by an impact to the abdominal area of his body in
a traffic accident, was based on a reliable differential diagnosis.
the expert originally did not have an opinion as to the cause of
the condition, but only ruled out infection. After reviewing the
medical examinations of other doctors, the expert ruled out other
causes such as a urinary tract obstruction, spinal cord injury, and
multiple sclerosis. When the expert reexamined the plaintiff, he
found that the plaintiff had an enlarged prostate, which condi-
tion had developed 4 years after the initial bladder problems.
the expert concluded that the plaintiff suffered from enlarged
prostate and neurogenic bladder. the expert then concluded
that the cause of the neurogenic bladder condition was the auto-
mobile accident because the condition developed within weeks
of the accident. the Carlson court noted that the expert ruled
out other causes based on his own physical examination of the
plaintiff, along with examinations conducted by other doctors.
the court concluded that the differential diagnosis was reliable
because the expert relied on the temporal connection between
the symptoms and the accident, and it was undisputed that such
trauma was capable of causing neurogenic bladder. Id.
Unlike the Carlson case, where the parties did not dispute
that trauma could cause the condition at issue or whether the
expert had properly ruled in potential causes of the injury, the
present appeal concerns whether exposure to diesel exhaust can
be a possible cause of multiple myeloma. the district court
found “no evidence that . . . Frank considered any other poten-
tial causes of . . . king’s multiple myeloma, why those potential
causes were eliminated and why . . . king’s exposure to diesel
exhaust is the most probable cause.” In his deposition, Frank
was asked if he employed the process of ruling in and ruling out
either known causes or known risk factors in making his opin-
ions or judgments with respect to etiology. Frank responded
“[y]es” without further explanation. Elsewhere in his deposi-
tion, Frank noted exposure to radiation as a possible cause,
but he found no evidence of any unusual exposure to radiation.
Frank stated, however, that there were no possible associations
of multiple myeloma with chemicals that he researched in
kINg v. BUrLINgtON NOrtHErN SANtA FE ry. CO. 	555
Cite as 16 Neb. App. 544

connection with king’s illness other than the association with
diesel exhaust. Frank also found articles with respect to associa-
tions of multiple myeloma and smoking, which “all appeared to
be negative” associations. Frank made no specific comparison
of associations between diesel exhaust and multiple myeloma
and associations between smoking and multiple myeloma.
Frank was asked if there was an association with farmwork,
and he agreed that there was some association between multiple
myeloma and exposure to pesticides. Similarly, Frank made no
specific comparisons between that association and the associa-
tions with exposure to diesel exhaust. Frank noted a possible
connection with diabetes as well, but stated it was not relevant
in king’s case because “it’s not a disease that he had.” Frank
agreed that king had worked on a farm at one point in his life
and that in working on a farm, he would have had the possibil-
ity of working with pesticides.
the district court determined that Frank’s differential diag-
nosis was not reliable. the court determined that the record did
not show what causes other then diesel exhaust exposure Frank
considered in his differential diagnosis. the court further deter-
mined that in the first step of the differential diagnosis, Frank
“‘ruled in’” diesel exhaust exposure as a possible cause, even
though no medical or scientific study concluded that such expo-
sure causes multiple myeloma. Finally, the court determined that
in the second step, Frank did not state why he “‘ruled out’” any
other potential causes, but merely concluded that diesel exhaust
exposure was most probable—again, even though no medical or
scientific study authorizes such a conclusion.
king argues that this court has previously accepted Frank’s
opinion based on a differential diagnosis. See Boren v. Burlington
Northern & Sante Fe Ry. Co., 10 Neb. App. 766, 637 N.W.2d
910 (2002). In Boren, Frank used a differential diagnosis to
conclude that a plaintiff’s exposure to various chemicals caused
him to contract cirrhosis. However, in Boren, Frank and another
expert testified that medical journals and peer-reviewed articles
“indicated that exposure to the various chemicals involved . . .
can cause cirrhosis.” 10 Neb. App. at 776, 637 N.W.2d at 920.
In Boren, Frank also testified that the plaintiff was exposed to
various chemicals over a period of years, that such exposure
556 	16 NEBrASkA AppELLAtE rEpOrtS

could cause medical problems, and that there was evidence to
rule out other causes. He also testified that the plaintiff had
acute reactions to the chemicals on numerous occasions, such as
skin reactions, breathing problems, and headaches. Id.
In the present case, the district court concluded that although
differential diagnosis is a generally accepted methodology,
Frank had not performed a reliable differential diagnosis. the
court further concluded that because Frank’s opinion was not
based on reliable methodology, his testimony must be excluded
under the Nebraska Evidence rules and expert testimony
reliability standards established in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb.
215, 631 N.W.2d 862 (2001).
Having reviewed the record, including the district court’s
well-reasoned opinion and Frank’s deposition testimony, and
the relevant case law, we find no abuse of discretion in the
district court’s decision to grant BNSF’s motion in limine and
exclude Frank’s testimony.
Other Expert.
king asserts that the district court erred in failing to allow
king to obtain other expert testimony after disallowing Frank’s
testimony. king states that the motion for additional time to
designate expert witnesses was filed because the court failed to
set out with sufficient particularity its reasoning in determining
that Frank’s differential diagnosis or etiology was deficient. We
note that the district court wrote a 10-page opinion explaining
its reasoning in support of its order granting the motion for
limine. king argues that BNSF would not have been prejudiced
had the court granted king’s motion, since king was deceased
by that point and there was no issue of ongoing damages. In
denying the motion during proceedings on November 16, 2005,
the court stated:
I will just say that I think I spent a good deal of time
trying to make my order very clear. I don’t think it was
exceedingly complicated. I think the science was such that
it required me to make such a decision, and that’s about
all I’ll say on it.
kINg v. BUrLINgtON NOrtHErN SANtA FE ry. CO. 	557
Cite as 16 Neb. App. 544

therefore, the motion for additional time to designate
an expert witness is denied.
[10] At the November 16, 2005, hearing on BNSF’s motion
for summary judgment, which occurred subsequently to the
hearings on the motion in limine and issuance of the district
court’s ruling thereon, the court indicated that it had just
received king’s motion for additional time. In essence, king
sought a continuance of the summary judgment hearing. A
continuance authorized by Neb. rev. Stat. § 25-1335 (reissue
1995) (continuance of summary judgment hearing for further
discovery) is within the discretion of the trial court, whose rul-
ing will not be disturbed on appeal in the absence of an abuse
of discretion. Newman v. Thomas, 264 Neb. 801, 652 N.W.2d
565 (2002). there is not a copy of the original petition in our
record, but the operative petition was filed in December 2001.
Clearly, the case had been at issue for quite some time by the
time of the November 16, 2005, hearing. the record does not
contain a copy of king’s motion for additional time, and there
is nothing in the bill of exceptions for the November 16 hearing
to indicate that king had identified any possible experts other
than Frank who might testify as to the causation of king’s mul-
tiple myeloma. the initial hearing on BNSF’s motion in limine
and motion for summary judgment was held on July 20, 2005,
and the possible need for an additional expert witness in the
event that BNSF prevailed on the motion in limine would have
been apparent at that time, months before king’s motion for
additional time. We find no abuse of discretion in the court’s
denial of king’s motion.
CONCLUSION
the court did not abuse its discretion in granting the motion
in limine to exclude Frank’s testimony or in denying king’s
motion for additional time to designate expert witnesses.
affirmed .
558 	16 NEBrASkA AppELLAtE rEpOrtS