McNeel v. Union Pacific RR. Co.

required it to dissolve its prior injunction, which injunction had
prevented the directors from voting, and to allow the waiver vote
to take place.
We reject Andrew’s contention that our mandate required the
district court to consider Andrew’s further claims for preventing
the directors’ vote on the waiver. We conclude that Andrew and
Pennfield waived all claims decided in the district court’s 2004
order that they failed to raise on appeal in Pennfield I. Because
those issues were waived on appeal, they were not part of our
mandate on remand to the district court.
affIrmed .
W rIght, J., not participating.
lynn r. mCneel , appellant and CroSS- appellee , v .
unIon paCIfIC raIlroad C ompany , a CorporatIon ,
appellee and CroSS- appellant .
753 N.W.2d 321
Filed July 18, 2008. 	No. S-07-155.
1. Summary Judgment. Summary judgment is proper when the pleadings and evi-
dence admitted at the hearing disclose no genuine issue regarding any material fact
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.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. 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.
4. Trial: Expert Witnesses: Appeal and Error. The admission of expert testimony
is ordinarily within the trial court’s discretion, and its ruling will be upheld absent
an abuse of discretion.
5. 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.
6. Federal Acts: Railroads: Negligence: Proximate Cause: Proof. To recover
under the Federal Employers’ Liability Act, an employee must prove the
employer’s negligence and that the alleged negligence is a proximate cause of the
employee’s injury.
MCNEEL v. UNION PACIFIC RR. CO. 	143
Cite as 276 Neb. 143
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

7. Federal Acts: Railroads: Trial: Juries: Negligence: Evidence: Proximate
Cause. In a case under the Federal Employers’ Liability Act, a court cannot allow
a jury to speculate concerning the cause of an employee’s injuries and must with-
hold or withdraw the employee’s case from the jury unless evidence provides a
basis for the reasonable inference that the employee’s injury was caused by the
employer’s negligence.
8. Courts: Expert Witnesses. When a court is faced with a decision regarding the
admissibility of expert opinion evidence, the trial judge must determine at the
outset whether the expert is proposing to testify to (1) scientific, technical, or
other specialized knowledge that (2) will assist the trier of fact to understand or
determine a fact in issue. This entails a preliminary assessment whether the reason-
ing or methodology underlying the testimony is valid and whether that reasoning
or methodology properly can be applied to the facts in issue. The first portion of
the analysis establishes a standard of evidentiary reliability. The second inquiry,
sometimes referred to as “fit,” assesses whether the scientific evidence will assist
the trier of fact to understand the evidence or to determine a fact in issue by
providing a valid scientific connection to the pertinent inquiry as a precondition
to admissibility.
9. Torts: Expert Witnesses: Proof. Generally, scientific knowledge of the harmful
level of exposure to a chemical plus knowledge that the plaintiff was exposed to
such quantities are minimal facts necessary to sustain the plaintiff’s burden in a
toxic tort case.
10. Trial: Expert Witnesses. Under the analysis 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), expert
testimony lacks “fit” when a large analytical leap must be made between the facts
and the opinion.
11. Evidence: Intent: Words and Phrases. Spoliation is the intentional destruction
of evidence.
12. Evidence: Intent. The intentional spoliation or destruction of evidence relevant to
a case raises an inference that this evidence would have been unfavorable to the
case of the spoliator. The inference does not arise where destruction was a matter
of routine with no fraudulent intent because the adverse inference drawn from the
destruction of evidence is predicated on bad conduct.
13. Evidence: Jury Instructions. In Nebraska, the proper remedy for spoliation of
evidence is an adverse inference instruction.
Appeal from the District Court for Lincoln County: J ohn p.
murphy, Judge. Affirmed.
Fredric A. Bremseth, of Bremseth Law Firm, P.C., and
Terrance O. Waite and keith A. Harvat, of Waite, McWha &
Harvat, for appellant.
William M. Lamson, Jr., and Anastasia Wagner, of Lamson,
Dugan & Murray, L.L.P., for appellee.
144 	276 NEBRASkA REPORTS

heavICan, 	C.J., 	W rIght, 	C onnolly, 	gerrard, 	S tephan,
mCC ormaCk, and mIller -lerman, JJ.
S tephan, J.
Lynn R. McNeel brought this action under the Federal
Employers’ Liability Act (FELA),1 alleging that he was injured
when he inhaled fumes while employed as a conductor by Union
Pacific Railroad Company (Union Pacific). The district court for
Lincoln County granted Union Pacific’s Daubert/Schafersman2
motion to exclude McNeel’s expert witnesses from testify-
ing and subsequently entered summary judgment in favor of
Union Pacific, from which McNeel appeals. We find no error
and affirm.
BACkGROUND
On March 12, 2001, McNeel was working as a conductor on a
freight train en route from North Platte, Nebraska, to Cheyenne,
Wyoming. He was seated on the left side of the locomotive
cab, and engineer LaVerne Golden was seated on the right side.
McNeel noticed nothing unusual as the train left North Platte
and proceeded through Hershey and Sutherland, Nebraska. As
they passed another train approximately 23 miles outside of
Ogallala, Nebraska, McNeel noticed what he characterized as
“the smell of sticking brakes” which persisted for a few seconds.
McNeel opened the side window of the locomotive unit to check
both his train and the passing train for smoke, but saw none.
There was never any smoke in the locomotive unit in which
McNeel was working.
A short time later, McNeel detected “a light smell” which per-
sisted for about 15 seconds. He described it as “more of a putrid
smell” which was “different than anything I ever smelled.” He
detected the odor again several miles later, again for only a few
seconds. A few minutes later, McNeel detected the odor for the
third time and asked Golden, the engineer, if he could smell it.
Golden replied that he could not. But then Golden came over to
1 45 U.S.C. §§ 51 through 60 (2000).
2 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).
MCNEEL v. UNION PACIFIC RR. CO. 	145
Cite as 276 Neb. 143

the side of the unit where McNeel was sitting and confirmed that
he could smell the odor. At that point, either McNeel or Golden
contacted the dispatcher to advise that they needed to stop the
train to investigate the odor. They eventually stopped the train
at a pass on the west end of Ogallala and were transported by
ambulance to a local hospital for evaluation.
McNeel alleged that the inhalation of these unidentified
fumes caused him to suffer “headaches, nausea, and injury to
his respiratory system, dizziness and other injuries not yet diag-
nosed.” He has been seen by a number of health care provid-
ers, including William J. Rea, M.D., a cardiovascular surgeon
who currently practices in the field of environmental medicine;
Theodore R. Simon, M.D., a specialist in nuclear medicine; and
Nancy Didriksen, Ph.D, a psychologist. These three provid-
ers submitted affidavits and depositions discussing McNeel’s
symptoms, condition, and treatment, and were the subject of the
Daubert/Schafersman motion.
Rea diagnosed McNeel as suffering from toxic encepha-
lopathy caused by his inhalation of an unspecified toxin while
employed by Union Pacific on March 12, 2001. Rea described
McNeel’s symptoms as including “memory loss, confusion,
brain fogg [sic] and imbalance.” In reaching his diagnosis, Rea
relied on a “positive [single photon emission computed tomo-
graphic (SPECT)] Scan” performed by Simon, a “positive”
result from “pupillography” testing of the autonomic nervous
system, and “positive thermography.” Rea could not identify the
substance responsible for McNeel’s symptoms and diagnosis.
Simon testified that SPECT scans are widely used and accepted
in the diagnosis of toxic encephalopathy, when used in conjunc-
tion with other examination techniques.
Didriksen 	gave 	“Diagnostic 	Impressions” 	of 	“Cognitive
Disorder Not Otherwise Specified” and “Adjustment Disorder
with Mixed Anxiety and Depressed Mood” based upon her work
with McNeel. Her tests revealed, inter alia, that McNeel’s infor-
mation processing speed was at the bottom of the average range
and that his memory scores were “borderline and low average.”
Comparing her test results with previous results obtained by
another doctor, Didriksen explained that her test results indicated
a “significant difference” in McNeel’s condition. Didriksen’s
146 	276 NEBRASkA REPORTS

hypothesis is that McNeel experienced a toxic injury that led to
declining cortical function over time.
Union Pacific moved to exclude the testimony of Didriksen,
Rea, and Simon under Daubert/Schafersman. In support of its
motion, it submitted affidavits and depositions from its own
expert witnesses. These witnesses opined that the scientific tech-
niques employed by McNeel’s experts, specifically the SPECT
scans performed by Simon and the psychological tests performed
by Didriksen, were not validated, peer reviewed, or generally
accepted by the scientific community for the purposes employed
by McNeel’s experts. The district court concluded that there was
adequate foundation for the opinions of McNeel’s experts, but
nonetheless excluded the opinions as “not relevant, not linked by
any evidence to a causative factor, and, therefore, inadmissible.”
Union Pacific then moved for summary judgment. It offered
and the court accepted the opinions of two expert witnesses
who opined that there was no credible evidence causally linking
McNeel’s symptoms to his alleged exposure. The court deter-
mined that this evidence met Union Pacific’s initial burden as
the party moving for summary judgment, thus shifting the bur-
den to McNeel to show that there remained a genuine issue of
material fact. The court concluded that medical records offered
by McNeel did not meet this burden, and therefore granted
the motion for summary judgment. McNeel perfected a timely
appeal, and we granted Union Pacific’s petition to bypass the
Court of Appeals.
ASSIGNMENTS OF ERROR
McNeel assigns, restated, that the district court erred in (1)
excluding the proposed testimony of his expert witnesses, (2)
granting Union Pacific’s motion for summary judgment because
there were genuine issues of material fact as to whether his
injuries were caused in whole or in part by exposure to toxic
gases while employed by Union Pacific, and (3) granting Union
Pacific’s motion for summary judgment because Union Pacific
failed to collect and preserve certain evidence.
Union Pacific cross-appeals and assigns that the district court
erred in finding the opinions of Didriksen, Simon, and Rea to be
scientifically reliable.
MCNEEL v. UNION PACIFIC RR. CO. 	147
Cite as 276 Neb. 143

STANDARD OF REVIEW
[1] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
regarding any material fact 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.3
[2] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit
of all reasonable inferences deducible from the evidence.4
[3,4] 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.5 The admission of expert
testimony is ordinarily within the trial court’s discretion, and its
ruling will be upheld absent an abuse of discretion.6
[5] 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.7
ANALySIS
fela C auSatIon S tandard
McNeel argues that in granting the motion for summary judg-
ment, the district court did not appreciate the “lower evidentiary
standard” applicable to a FELA plaintiff’s burden of proof.8
Federal law governs substantive issues in FELA claims litigated
in state courts pursuant to concurrent jurisdiction.9
3 Erikson v. U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007).
4 Wolski v. Wandel, 275 Neb. 266, 746 N.W.2d 143 (2008).
5 Epp v. Lauby, 271 Neb. 640, 715 N.W.2d 501 (2006). See State v. Kuehn,
273 Neb. 219, 728 N.W.2d 589 (2007).
6 In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007).
7 Epp v. Lauby, supra note 5.
8 Brief for appellant at 12.
9 See, Monaghan v. Union Pacific RR. Co., 242 Neb. 720, 496 N.W.2d 895
(1993); Chapman v. Union Pacific Railroad, 237 Neb. 617, 467 N.W.2d 388
(1991).
148 	276 NEBRASkA REPORTS

[6] Under FELA, railroad companies are liable in damages to
any employee who suffers injury during the course of employ-
ment when such injury results in whole or in part due to the
railroad’s negligence.10 This court has stated that to recover
under FELA, an employee must prove the employer’s negli-
gence and that the alleged negligence is a proximate cause of
the employee’s injury.11 We note that FELA causation standards
apply where, as here, liability is premised in whole or in part on
an alleged violation of the Locomotive Inspection Act, formerly
known as the Boiler Inspection Acts.12
McNeel argues that proximate causation under FELA is
subject to a different, more lenient standard than under the com-
mon law. Indeed, there are federal cases which would appear to
support his argument.13 Most are based on language in Rogers
v. Missouri Pacific R. Co.,14 in which the U.S. Supreme Court
stated: “Under [FELA] the test of a jury case is simply whether
the proofs justify with reason the conclusion that employer
negligence played any part, even the slightest, in producing the
injury or death for which damages are sought.” Based upon this
language, some courts have stated that there is a “relaxed stan-
dard” for causation in FELA cases.15 Other courts conclude from
Rogers that the plaintiff in a FELA case “carries only a slight
burden on causation.”16
10 See 45 U.S.C. § 51.
11 Chapman v. Union Pacific Railroad, supra note 9.
12 49 U.S.C. §§ 20102, 20701 to 20703, 21302, and 21304 (2000) (formerly
45 U.S.C. §§ 22 through 34 (1988 & Supp. V 1993)). See, Green v. River
Terminal Ry. Co., 763 F.2d 805 (6th Cir. 1985); Elston v. Union Pacific R.
Co., 74 P.3d 478 (Colo. App. 2003).
13 See, e.g., Hardyman v. Norfolk & Western Ry. Co., 243 F.3d 255 (6th Cir.
2001); Bowers v. Norfolk Southern Corp., 537 F. Supp. 2d 1343 (M.D. Ga.
2007).
14 Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 1 L. Ed.
2d 493 (1957).
15 See, e.g., Hardyman v. Norfolk & Western Ry. Co., supra note 13; Bowers v.
Norfolk Southern Corp., supra note 13.
16 Paul v. Missouri Pacific R. Co., 963 F.2d 1058, 1061 (8th Cir. 1992). See
Harbin v. Burlington Northern R. Co., 921 F.2d 129 (7th Cir. 1990).
MCNEEL v. UNION PACIFIC RR. CO. 	149
Cite as 276 Neb. 143

The existence of a “relaxed standard” for proving causation
in FELA cases was called into question by the U.S. Supreme
Court’s decision in Norfolk Southern R. Co. v. Sorrell.17 In that
case, the Court held that in a FELA action, the same causation
standard applies to the employer’s negligence and the employee’s
contributory negligence, rejecting a contrary approach employed
by Missouri state courts. In reaching this conclusion, the Court
noted that the “fact that the common law applied the same cau-
sation standard to defendant and plaintiff negligence, and FELA
did not expressly depart from that approach, is strong evidence
against Missouri’s disparate standards.”18 A concurring opinion
noted that despite its interpretation by some courts, Rogers “did
not address, much less alter, existing law governing the degree
of causation necessary for redressing negligence as the cause
of negligently inflicted harm; the case merely instructed courts
how to proceed when there are multiple cognizable causes of an
injury.”19 Another concurrence, however, noted that the Court’s
opinion “leaves in place precedent solidly establishing that the
causation standard in FELA actions is more ‘relaxed’ than in
tort litigation generally.”20 Although the Court held that the
causation standard for negligence and contributory negligence
under FELA is the same, it did not articulate what the proper
standard should be inasmuch as it did not grant certiorari on
that issue.
[7] But even courts which have recognized a “relaxed stan-
dard” of causation have nevertheless held that a FELA plaintiff
bears the burden of presenting evidence from which a jury could
conclude the existence of a probable or likely causal relation-
ship, as opposed to a merely possible one.21 In Chapman v.
Union Pacific Railroad, we cited the aforementioned language
17 Norfolk Southern R. Co. v. Sorrell, 549 U.S. 158, 127 S. Ct. 799, 166 L. Ed.
2d 638 (2007).
18 Id., 549 U.S. at 168.
19 Id., 549 U.S. at 173 (Souter, J., concurring).
20 Id., 549 U.S. at 178 (Ginsburg, J., concurring in judgment).
21 Savage v. Union Pacific R. Co., 67 F. Supp. 2d 1021 (E.D. Ark. 1999);
Abraham v. Union Pacific R. Co., 233 S.W.3d 13 (Tex. App. 2007), citing
Edmonds v. Illinois Cent. Gulf R. Co., 910 F.2d 1284 (5th Cir. 1990).
150 	276 NEBRASkA REPORTS

from Rogers but interpreted other U.S. Supreme Court precedent
as requiring that in a FELA case, “a court cannot allow a jury
to speculate concerning the cause of an employee’s injuries and
must withhold or withdraw the employee’s case from the jury
unless evidence provides a basis for the reasonable inference
that the employee’s injury was caused by the employer’s negli-
gence.”22 We conclude that this principle governs the causation
issue here.
In common-law negligence cases where symptoms of an
injury are subjective, Nebraska law requires medical testimony.23
Federal courts apply the same principle in FELA cases where
injury is alleged to have occurred as a result of exposure to a
toxic substance.24 In this case, expert testimony was necessary to
establish the basis for an inference that McNeel’s injuries were
caused by the inhalation of fumes attributable to some negligent
act or omission on the part of Union Pacific.
exCluSIon of mCneel ’S expert WItneSSeS
Our evidence rule governing expert opinion25 is similar to the
federal rule,26 and in Schafersman v. Agland Coop,27 we held
prospectively that trial courts would be required to evaluate
the admissibility of expert opinion testimony under the analyti-
cal framework first established by the U.S. Supreme Court in
Daubert v. Merrell Dow Pharmaceuticals, Inc.28 As a principle
of evidence, Daubert/Schafersman applies in a FELA case in
the same manner as in other cases. As one federal court has
explained in a FELA case involving alleged injuries from expo-
sure to workplace chemicals:
22 Chapman v. Union Pacific Railroad, supra note 9, 237 Neb. at 627, 467
N.W.2d at 395.
23 Eiting v. Godding, 191 Neb. 88, 214 N.W.2d 241 (1974).
24 Claar v. Burlington Northern R. Co., 29 F.3d 499 (9th Cir. 1994); Savage v.
Union Pacific R. Co., supra note 21; Schmaltz v. Norfolk & Western Ry. Co.,
878 F. Supp. 1119 (N.D. Ill. 1995).
25 Neb. Rev. Stat. § 27-702 (Reissue 1995).
26 Fed. R. Evid. 702.
27 Schafersman v. Agland Coop, supra note 2.
28 Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 2.
MCNEEL v. UNION PACIFIC RR. CO. 	151
Cite as 276 Neb. 143

The standard of causation under FELA and the stan-
dards for admission of expert testimony under the Federal
Rules of Evidence are distinct issues and do not affect one
another. . . . It is true that under FELA the quantum of
evidence sufficient to present a jury question of causation
is less than it is in a common law tort action. . . . This
does not mean, however, that FELA plaintiffs need make
no showing of causation. Nor does it mean that in FELA
cases courts must allow expert testimony that in other con-
texts would be inadmissible. It means only that in FELA
cases the negligence of the defendant “need not be the sole
cause or whole cause” of the plaintiff’s injuries. . . . FELA
plaintiffs still must demonstrate some causal connection
between a defendant’s negligence and their injuries.29
Other circuits have reached the same conclusion,30 and the
Nebraska Court of Appeals has recently applied the Daubert/
Schafersman analysis in a FELA case involving an injury alleg-
edly caused by exposure to diesel exhaust fumes.31
[8] Under the Daubert/Schafersman analytical framework,
when a court is faced with a decision regarding the admissibil-
ity of expert opinion evidence, the trial judge must determine
at the outset whether the expert is proposing to testify to (1)
scientific, technical, or other specialized knowledge that (2)
will assist the trier of fact to understand or determine a fact
in issue.32 This entails a preliminary assessment whether the
29 Claar v. Burlington Northern R. Co., supra note 24, 29 F.3d at 503 (citations
omitted).
30 Knight v. Kirby Inland Marine Inc., 482 F.3d 347 (5th Cir. 2007); Wills v.
Amerada Hess Corp., 379 F.3d 32 (2d Cir. 2004) (noting expert testimony
is necessary to establish causation, even in view of plaintiff’s reduced bur-
den to prove causation in Jones Act case); Hardyman v. Norfolk & Western
Ry. Co., supra note 13; Diefenbach v. Sheridan Transp., 229 F.3d 27 (1st
Cir. 2000) (discussing Daubert challenge in a Jones Act case); Summers
v. Missouri Pacific R.R. System, 132 F.3d 599 (10th Cir. 1997); Hose v.
Chicago Northwestern Transp. Co., 70 F.3d 968 (8th Cir. 1995).
31 King v. Burlington Northern Santa Fe Ry. Co., 16 Neb. App. 544, 746
N.W.2d 383 (2008).
32 See, Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 2;
Schafersman v. Agland Coop, supra note 2.
152 	276 NEBRASkA REPORTS

reasoning or methodology underlying the testimony is valid
and whether that reasoning or methodology properly can be
applied to the facts in issue.33 The first portion of the analysis
“establishes a standard of evidentiary reliability.”34 The second
inquiry, sometimes referred to as “‘fit,’” assesses whether the
scientific evidence will assist the trier of fact to understand the
evidence or to determine a fact in issue by providing “a valid
scientific connection to the pertinent inquiry as a precondition
to admissibility.”35 “‘Expert testimony which does not relate to
any issue in the case is not relevant and, ergo, non-helpful.’”36
“‘Fit’ is not always obvious, and scientific validity for one
purpose is not necessarily scientific validity for other, unre-
lated purposes.”37
After examining the affidavits of McNeel’s proferred experts
Didriksen, Simon, and Rea, and the affidavits submitted by
Union Pacific’s experts challenging the scientific reliability of
their opinions, the district court concluded that “while . . .
there is foundation for their ‘shaky but admissible evidence’,
their opinions are not relevant, not linked by any evidence to a
causative factor, and, therefore, inadmissible.” McNeel assigns
error to the determination of inadmissibility. In its cross-appeal,
Union Pacific challenges the court’s apparent determination of
scientific reliability with respect to the experts’ opinions.
The cross-appeal raises a significant issue. A number of
courts have determined that toxic encephalopathy, also known
as multiple chemical sensitivity or idiopathic environmental
intolerance, is a controversial diagnosis unsupported by sound
33 Id.
34 Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 2, 509 U.S. at
590.
35 Id., 509 U.S. at 591-92.
36 Id., 509 U.S. at 591. Accord 4 Joseph M. McLauglin, Weinstein’s Federal
Evidence § 702.02[5] (2d ed. 2007).
37 Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 2, 509 U.S. at
591.
MCNEEL v. UNION PACIFIC RR. CO. 	153
Cite as 276 Neb. 143

scientific reasoning or methodology.38 Some courts have specifi-
cally rejected or discredited the opinions of Rea and Didriksen
on this subject.39
However, we need not reach the issue presented by the cross-
appeal because we conclude that the district court correctly
concluded that even if considered scientifically reliable, the
opinions of McNeel’s experts did not “fit” the issues of this case
because they did not identify any specific causative agent for the
diagnosis of toxic encephalopathy.
[9] Generally, “‘“[s]cientific knowledge of the harmful level
of exposure to a chemical plus knowledge that plaintiff was
exposed to such quantities are minimal facts necessary to sustain
the plaintiff’s burden in a toxic tort case.”’”40 Because McNeel’s
experts could not identify any toxic substance which caused the
symptoms they diagnosed as toxic encephalopathy, their reason-
ing on causation was reduced to nothing more than post hoc,
ergo propter hoc, which, as we said in Schafersman, “cannot
be said to be helpful to the trier of fact under Neb. Evid. R.
702, even absent the application of a more stringent Frye[41] or
Daubert analysis.”42 Didriksen admitted that this was her rea-
soning process. Rea testified that because McNeel experienced
symptoms during and after his exposure to the unidentified
fumes, the exposure caused the symptoms.
At least one court has specifically held in a FELA case that
a causation opinion based solely on a temporal relationship is
38 See, e.g., Summers v. Missouri Pacific R.R. System, supra note 30; Bradley
v. Brown, 42 F.3d 434 (7th Cir. 1994); Brown v. Shalala, 15 F.3d 97 (8th Cir.
1994); Coffey v. County of Hennepin, 23 F. Supp. 2d 1081 (D. Minn. 1998);
Frank v. State of New York, 972 F. Supp. 130 (N.D.N.y. 1997); Sanderson v.
IFF, 950 F. Supp. 981 (C.D. Cal. 1996). But see McDaniel v. CSX Transp.,
Inc., 955 S.W.2d 257 (Tenn. 1997).
39 Bradley v. Brown, supra note 38; Myhre v. Workers Compensation Bureau,
653 N.W.2d 705 (N.D. 2002); Jones v. Ruskin Mfg., 834 So. 2d 1126 (La.
App. 2002).
40 Savage v. Union Pacific R. Co., supra note 21, 67 F. Supp. 2d at 1035, quot-
ing Allen v. Pennsylvania Engineering Corp., 102 F.3d 194 (5th Cir. 1996).
41 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
42 Schafersman v. Agland Coop, supra note 2, 262 Neb. at 223, 631 N.W.2d at
871.
154 	276 NEBRASkA REPORTS

not derived from the scientific method and is therefore insuf-
ficient to satisfy the requirements of rule 702.43 In Carlson v.
Okerstrom,44 we noted that when a person develops symptoms
after encountering an agent which is known to be capable of
causing those symptoms, courts have been more willing to admit
expert testimony relying on the temporal connection between
the exposure and the onset of symptoms. But here, no one can
identify to which “agent,” if any, McNeel was exposed on the
date of his alleged injury.
[10] Under the Daubert/Schafersman analysis, expert testi-
mony lacks “‘fit’ when ‘a large analytical leap must be made
between the facts and the opinion.’”45 That is the case here.
Assuming without deciding that the diagnosis of toxic encepha-
lopathy was the product of scientifically reliable methodology,
it is simply too great an analytical leap to conclude that it was
caused by some act or omission on the part of Union Pacific,
given that the experts could not identify any toxic agent. Due
to this lack of “fit,” the opinions of McNeel’s experts would not
have assisted the trier of fact in understanding the evidence or
determining a fact in issue, and the district court did not abuse
its discretion in determining that they were inadmissible.
C olleCtIon and preServatIon of evIdenCe
McNeel assigns that the district court should not have entered
summary judgment, because Union Pacific “failed to collect
and preserve evidence.” We find no motion or pleading in the
record raising this issue. In its brief, Union Pacific states that the
issue was raised in a reply brief filed by McNeel in response to
its motion in limine. In the district court’s order on the motion
in limine, it stated that McNeel claimed that Union Pacific
“destroyed or secreted evidence that would have shown the spe-
cific chemical agent and its source,” but determined that there
was no evidence to support the claim.
43 Schmaltz v. Norfolk & Western Ry. Co., supra note 24.
44 Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004).
45 See Bowers v. Norfolk Southern Corp., supra note 13, 537 F. Supp. 2d at
1351.
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[11-13] Spoliation is the intentional destruction of evidence.46
It is a general rule that the intentional spoliation or destruction of
evidence relevant to a case raises an inference that this evidence
would have been unfavorable to the case of the spoliator.47 The
rationale of the rule is that intentional destruction amounts to an
admission by conduct of the weakness of one’s own case; thus,
only intentional destruction supports the rationale of the rule.48
The inference does not arise where destruction was a matter of
routine with no fraudulent intent49 because the adverse infer-
ence drawn from the destruction of evidence is predicated on
bad conduct.50 In Nebraska, the proper remedy for spoliation of
evidence is an adverse inference instruction.51 There is nothing
in the record to support a claim that Union Pacific intentionally
destroyed any evidence relevant to this case.
McNeel also argues that under Trieweiler v. Sears,52 Union
Pacific had an affirmative duty to preserve all relevant evidence.
Trieweiler was a derivative action brought by a minority share-
holder, alleging breach of fiduciary duties. The district court had
made a finding that lost corporate financial records resulted in
an adverse inference as to the party who had a fiduciary duty to
maintain the records. We analogized the conduct in Trieweiler
to spoliation, but noted it was not a case of spoliation because
the record did not clearly establish that evidence had been inten-
tionally destroyed by the majority shareholder. We noted that
some principles of the rule of spoliation supported the district
court’s reasoning. Trieweiler has no application to this case, in
that Union Pacific owed no general fiduciary duty to McNeel
to maintain records which, as far as we can determine from the
record, had not been requested by McNeel or his counsel.
46 State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).
47 See Richter v. City of Omaha, 273 Neb. 281, 729 N.W.2d 67 (2007).
48 State v. Davlin, supra note 46.
49 Richter v. City of Omaha, supra note 47.
50 State v. Davlin, supra note 46.
51 Id.
52 Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004).
156 	276 NEBRASkA REPORTS

S ummary J udgment
As the party moving for summary judgment, Union Pacific
was required to produce enough evidence to demonstrate that
it was entitled to judgment if that evidence was uncontroverted
at trial. The burden then shifted to McNeel to produce evidence
showing the existence of a genuine issue of material fact that
would prevent judgment as a matter of law.53
Union Pacific met its initial burden by producing the affidavit
of a licensed psychologist who stated that McNeel’s symptoms
“cannot be causally attributed to any alleged toxic exposure by
any generally accepted or scientifically validated method” and
the affidavit of a physician who stated that “there is no cred-
ible psychiatric, medical, or scientific evidence that . . . McNeel
suffers from toxic encephalopathy, any mental disorder, any
cognitive impairment, or any other medical or psychiatric conse-
quence as a result of any alleged exposure to fumes in the course
of employment with . . . Union Pacific.”
The only evidence offered by McNeel in opposition to the
motion was an affidavit of his attorney which identified various
medical records attached to the affidavit. The district court deter-
mined that none of the records constituted expert medical testi-
mony to show a link between the inhalation of fumes and the
injuries allegedly suffered by McNeel. We agree. There was no
genuine issue of fact as to the element of causation, and Union
Pacific was entitled to judgment as a matter of law.
CONCLUSION
For the reasons discussed, we conclude that (1) the district
court did not abuse its discretion in excluding the testimony of
McNeel’s expert witness as under Daubert/Schafersman, (2) the
record does not support McNeel’s spoliation of evidence claim,
and (3) the district court did not err in entering summary judg-
ment in favor of Union Pacific. Accordingly, we affirm.
affIrmed .
53 See, Sweem v. American Fidelity Life Assurance Co., 274 Neb. 313, 739
N.W.2d 442 (2007); Neiman v. Tri R Angus, 274 Neb. 252, 739 N.W.2d 182
(2007); Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 (2005).
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