Simon v. Drake
Neb.
Nebraska Advance Sheets
784 285 NEBRASKA REPORTS
juvenile’s mental health needs. I would agree that if the State
presents evidence that a parent is not properly dealing with
a child’s mental health issues, a court could order the parent
to comply with suitable therapy and require followup reports.
But an order to release past mental health records so that the
State can assess them is substantially different from requiring
a parent to obtain mental health or substance abuse treatment
or to participate in family therapy. This court has not previ-
ously addressed the privacy concerns raised by an order like
this and need not do so now. But I believe an advisory opin-
ion that such orders are within a juvenile court’s discretion
is inappropriate.
Bruce Simon, appellant, v. Mary K ay
Drake, M.D., appellee.
___ N.W.2d ___
Filed May 3, 2013. No. S-11-744.
1. Rules of Evidence. 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 determin-
ing admissibility.
2. Trial: Evidence: Appeal and Error. In a civil case, the admission or exclusion
of evidence is not reversible error unless it unfairly prejudiced a substantial right
of the complaining party.
3. Expert Witnesses: Testimony: Appeal and Error. An appellate court reviews a
trial court’s decision to admit or exclude expert testimony under the appropriate
standards for abuse of discretion.
4. Rules of Evidence: Expert Witnesses: Testimony. Under Neb. Evid. R. 702,
Neb. Rev. Stat. § 27-702 (Reissue 2008), a trial court does not have discretion to
permit a witness who has not been qualified as an expert to testify to issues that
require an expert’s opinion.
5. Malpractice: Physicians and Surgeons: Proximate Cause. In medical malprac-
tice cases, expert testimony by a medical professional is normally required to
establish causation and the standard of care under the circumstances.
Petition for further review from the Court of Appeals,
Inbody, Chief Judge, and Irwin and Sievers, Judges, on appeal
thereto from the District Court for Douglas County, Gary B.
Nebraska Advance Sheets
SIMON v. DRAKE 785
Cite as 285 Neb. 784
Randall, Judge. Judgment of Court of Appeals reversed, and
cause remanded with directions.
Robert M. Slovek and Douglas W. Peters, of Kutak Rock,
L.L.P., for appellant.
Joseph S. Daly and Mary M. Schott, of Sodoro, Daly &
Sodoro, P.C., for appellee.
Heavican, C.J., Connolly, and McCormack, JJ., and
Riedmann, Judge, and Cheuvront, District Judge, Retired.
Connolly, J.
SUMMARY
The appellant, Bruce Simon, sued the appellee, Mary Kay
Drake, M.D., for medical malpractice. A jury returned a ver-
dict for Drake. Simon appeals from the district court’s evi-
dentiary rulings. During trial, the court permitted Drake to
question one of Simon’s treating physicians, Kevin Garvin,
about his opinion of Drake’s performance in treating Simon
for hip pain—even though neither party had designated Garvin
as an expert.
In a memorandum opinion, the Nebraska Court of Appeals
concluded that the trial court erroneously admitted Garvin’s
testimony about the standard of care. But it concluded that
the error was not prejudicial because the parties’ designated
experts provided similar evidence. We granted Simon’s peti-
tion for further review of the Court of Appeals’ conclusion
that Simon was not prejudiced by the trial court’s erroneous
admission of Garvin’s testimony. We reverse. The court’s
ruling denied Simon any opportunity to challenge the pre-
sumptive validity and weight that a jury would have given
to Simon’s own treating physician testifying as an expert
against him.
BACKGROUND
Historical Facts
In 2006, Simon’s primary care physician began treating
Simon for back and hip pain. In June 2007, Simon first saw
Garvin, an orthopedic surgeon at the University of Nebraska
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Medical Center (UNMC). Garvin ordered x rays that showed
Simon had moderate arthritis in both hips, but more in his
right hip. Simon knew that he would eventually need a
hip replacement.
In July, Garvin ordered hip injections for Simon at UNMC’s
radiology department. Simon’s primary care physician testified
that Simon’s hip pain could be treated with anti-inflammatory
medication and hip injections that contained steroids and
long-acting numbing medications. To guide the needle for an
injection, orthopedic radiologists use a fluoroscopic-guided
hip injection procedure. That is, they rely on x rays to deter-
mine the bone’s location and whether they have successfully
reached the joint, which is revealed by a color contrast in
the injection.
Simon was warned of a risk of infection associated with
the procedure and signed a consent form. The record shows
that Simon is a large man. The radiology department used a
31⁄2-inch needle to inject his hip joint. Simon described the
July 2007 injection as a 10-minute procedure involving no pain
and requiring only one attempt to inject his hip joint. He fol-
lowed the radiology department’s directions, and 3 days later,
he received significant pain relief that lasted until March or
April 2008.
In May 2008, Garvin ordered Simon’s second hip injection
at UNMC. Drake was UNMC’s radiology residency director.
Brad Hilger, a first-year resident physician at UNMC under
Drake’s supervision, performed the 2008 injections. Hilger
read Simon the consent form and discussed the possible risks,
including infection, which Hilger explained were usually low.
Simon signed the consent.
Hilger used “CloraPrep,” an antiseptic solution, to sterilize
Simon’s skin before attempting an injection. He did not steri
lize Simon’s skin again during the procedure. Before begin-
ning, Hilger was concerned that the 21⁄2-inch needle on the
instrument tray might be too short and consulted Drake, who
was watching from behind a partition screen. Hilger and Drake
both testified that they normally use a 31⁄2-inch needle. At trial,
Drake admitted that she had never used a 21⁄2-inch needle for a
Nebraska Advance Sheets
SIMON v. DRAKE 787
Cite as 285 Neb. 784
hip injection. The assisting technician testified that a 21⁄2-inch
needle is sometimes referred to as a “pediatric needle.” But
after Drake walked around the partition and looked at Simon
and the needle, she told Hilger that although the needle looked
a little shorter than a 31⁄2-inch needle, it would probably work
and he should go ahead and use it.
Hilger made an unsuccessful attempt to inject Simon’s hip
joint with the 21⁄2-inch needle, but he was unsure whether the
needle was too short or whether he had missed the femur.
Drake testified that from looking at the fluoroscopy machine,
she thought that the needle had deflected off to the side of
Simon’s femur bone. She told Hilger to redirect and try again.
On the second attempt, Hilger again failed to hit the bone.
Drake determined that the needle had not hit the bone and
removed it. She stated that they needed a longer needle and
asked the technician to find a 51⁄2-inch needle for her, but one
was not available.
After a few minutes, the technician returned with a 7- or
71⁄2-inch needle. By this time, Simon was nervous. He said
that he would come back another day but that Drake told
him to sit still and she would have the injection finished in a
few minutes. On her second attempt with the 7-inch needle,
Drake injected the medication into Simon’s hip joint. The
record shows a total of four needle penetrations: two with the
21⁄2-inch needle and two with the 7-inch needle. Drake testified
that she had not previously made more than two attempts to
inject a hip joint. Hilger estimated that the procedure took 25
minutes from the time Simon was sterilized until Drake’s suc-
cessful injection.
After he left UNMC, Simon said that he felt overly sore but
attributed it to the multiple injections. He followed Drake’s
directions, but the pain progressed through the weekend.
Around 2:30 a.m. on the following Tuesday, Simon was in
terrible pain. He was taken by ambulance to the hospital and
treated for a staphylococcus aureus infection, which resulted
in his admission to intensive care. Simon’s primary care phy-
sician testified that the infection was life threatening. Simon
underwent a debridement procedure to remove unhealthy
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tissue and clean out the infection from his hip joint. When
he returned home 5 days later, his infection seemed to be
under control.
But the debridement procedure failed to remove all of
the infection. In August, Garvin performed another debride-
ment procedure to remove the necrotic (dead) cartilage, tis-
sue, and bone in Simon’s hip joint and femur. The infection
had abscessed in his hip joint and destroyed it. Garvin had to
remove Simon’s femur head and replaced it with a “spacer,”
an artificial ball that delivers antibiotics to the joint and the
femur. But the spacer was not structurally sound and rotated
out of the socket easily. Simon was unable to walk and had
significant pain. He required strong pain medication and nurs-
ing care until he could receive a hip replacement when the
infection cleared up. In November 2008, Garvin performed a
total hip replacement. Simon had extensive rehabilitation until
October 2009.
P rocedural History R egarding
Garvin’s Testimony
In November 2009, Simon sued Drake, alleging that she
was negligent in her treatment and in her failure to obtain his
informed consent. Drake answered that Simon had consented
to the procedure knowing that there was a risk of infection
and that she had performed the procedure within the standard
of care.
Before trial, Simon moved in limine to exclude Garvin’s
opinions in a deposition and at trial regarding the standard of
care and causation. Simon argued that Garvin’s opinions were
irrelevant because he was Simon’s treating physician and nei-
ther party had retained him as an expert. The court agreed. It
had previously entered a progression order requiring the parties
to identify their experts, and Drake had not identified Garvin as
an expert. It ruled that Garvin’s opinions about the standard of
care and medical causation were therefore irrelevant and inad-
missible. It stated that Drake’s attorney could not ask Garvin
for “any opinions that don’t relate to the facts having to do
with the treatment that he provided to [Simon].”
Nebraska Advance Sheets
SIMON v. DRAKE 789
Cite as 285 Neb. 784
Before calling Garvin, Drake’s attorney sought to clarify
what questions he could ask Garvin. He conceded that he
had not designated Garvin as an expert but stated that he
would ask Garvin only whether multiple penetrations with a
needle were “a complication.” Simon’s counsel protested that
Garvin’s proposed testimony would be an opinion regarding
the standard of care and that Garvin was not a designated
expert. Drake’s counsel, however, assured the court that he
would not ask Garvin about the standard of care or whether
using a 21⁄2-inch needle violated the standard of care. The court
ruled that Drake’s counsel could ask Garvin about multiple
needle penetrations.
Garvin testified that he had occasionally performed hip
injections. Drake’s attorney then asked, “Is there a standard
size needle that one uses?” Simon objected, but the court over-
ruled Simon’s continuing objection to that line of questioning.
Garvin testified that the needles came in a range of sizes and
that the proper length depended upon the patient’s size: “I
would say two-and-a-half to four-and-a-half would cover most.
Occasionally you might use a large needle.”
In a side bar, Simon objected that Drake’s counsel had said
he would not ask these questions about the standard needle
size. The court agreed. But when Simon asked the court to
instruct the jury to disregard Garvin’s testimony about the
needle size, the court stated, “I find it to be harmless error and
I’m going to leave it the way it is.”
Garvin further testified that infection is a recognized com-
plication of hip injections and that based on his experience, it
is not uncommon with arthritic hips to place the needle more
than once to get it in the correct site. He said that he knew of
no literature that correlated the length of the procedure or the
number of penetrations with an increased risk of infection.
Expert Testimony at Trial
Three medical experts testified for Simon. These experts
generally opined that the procedures used by Hilger and Drake
fell below the standard of care for using sterile techniques to
prevent infection. Between them, they opined that Simon’s
risk of infection had been increased by the following actions:
Nebraska Advance Sheets
790 285 NEBRASKA REPORTS
(1) Drake’s approving Hilger’s use of the wrong size needle;
(2) Hilger’s and Drake’s failing to use the standard size needle,
which is a 31⁄2-inch needle; (3) Hilger’s and Drake’s mak-
ing multiple needle penetrations in a nonsterile environment
instead of an operating room; (4) Hilger’s handing the needle
to Drake; and (5) Drake’s failing to sterilize Simon’s skin again
before attempting the third and fourth injections.
Drake countered with one expert. He opined that Simon’s
skin would have remained sterile during the entire procedure
and that four attempts at a hip injection did not violate the stan-
dard of care. He believed that Simon’s previous hip injection
could have caused scar tissue that made a successful injection
more difficult. Finally, he stated that a 31⁄2-inch needle is the
standard size but that its use is not always required, depend-
ing on the patient’s size. He believed Drake’s decision to try
the injection with a 21⁄2-inch needle was within the standard of
care. But on cross-examination, Drake’s expert conceded that a
21⁄2-inch needle is normally used with children or small adults,
that Simon was not small, and that he would not have used a
pediatric needle on Simon.
Closing Argument
In his closing argument, Drake’s attorney emphasized
Garvin’s testimony:
One final witness that testified. And, again, I got kind
of broken up, but we can’t get into that. And I think
this testimony is critical, and that’s Dr. Kevin Garvin.
Dr. Garvin is . . . Simon’s doctor. He was . . . Simon’s
father’s doctor. . . . I asked him this question: Doctor,
is there any standard size needle? Dr. Garvin said, No,
there’s no standard size needle. . . . I said, Is there a stan-
dard time for the procedure? He said no. . . . And what he
said was it can take as little as 10 to 15 minutes or it can
take as long as 30 to 40 minutes. That was the testimony
of [Simon’s] own doctor. . . . And he went on to say that
procedures can take longer with a patient who’s had hip
disease [like] Simon.
He said infection is a recognized complication of the
procedure. Every witness has testified to that. He said it’s
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SIMON v. DRAKE 791
Cite as 285 Neb. 784
not uncommon to have to place the needle more than one
time or multiple times. Not uncommon. And, remember,
we started out by asking Dr. Garvin, Do you do these pro-
cedures? Is this something that you do in your practice?
And he said, Yes, he does them. And we know that they’re
done either by radiologists such as Dr. Drake or orthope-
dic surgeons. And he does these procedures, and he said
it’s not uncommon to have to place needles more than one
time, or multiple times for that matter. And then he was
asked about if the risk of infection — I asked him, Does
the risk of infection increase with the passage of time and
with the number of sticks? And I wrote this down word
for word. “I don’t know that to be true. There’s no litera-
ture that says that.” And that’s Dr. Garvin.
The jury returned a unanimous verdict for Drake. The court
overruled Simon’s motion for a new trial.
Court of Appeals’ Decision
Simon appealed to the Court of Appeals, which affirmed.
The Court of Appeals concluded that any error in the admission
of Garvin’s testimony was harmless because Simon could not
establish prejudice:
[S]imilar evidence was established and testimony given
through the numerous experts who testified, on behalf of
both Simon and Dr. Drake, about various issues which
included the standard of care and the standard size of
the needles utilized in similar injection procedures. The
record is clear that this was a battle of the experts.
Simon’s experts testified that Dr. Drake violated the stan-
dard of care in numerous ways, while Dr. Drake and her
expert testified that she did not violate the standard of
care. Each of the experts in this case gave substantially
similar and generally more specific testimony as given by
Dr. Garvin regarding what was the standard size of the
needle used in similar procedures. The weight to be given
to that expert testimony was a determination for the jury
to make as the fact finder. . . .
Thus, even though we find it was error for the dis-
trict court to allow the testimony, without a curative
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instruction to the jury to disregard or strike the testimony,
Simon has not established that the admission constituted
reversible error. . . .
Simon argues that the district court erred by allowing
Dr. Drake’s counsel to again address the issue in closing
arguments . . . . However, Simon did not object to this
statement either during or immediately after closing argu-
ments. . . . Thus, any error that occurred during closing
argument by Dr. Drake’s counsel was waived.
ASSIGNMENTS OF ERROR
Simon assigns that the Court of Appeals erred as follows:
(1) failing to presume prejudice from the wrongful admis-
sion of Garvin’s testimony;
(2) concluding that Garvin’s testimony was cumulative or
substantially similar to other testimony and therefore not preju-
dicial, when Garvin’s testimony essentially served as an admis-
sion by Simon because of Garvin’s unique status and credibil-
ity as Simon’s treating physician;
(3) mischaracterizing the record by stating that the issues on
appeal concerned a “‘battle of the experts,’” because Garvin
was not testifying as an expert when he gave the wrongfully
admitted testimony regarding needle length; and
(4) concluding that Simon had waived his objections to
Drake’s violations of the order in limine by withholding objec-
tions during closing argument.
STANDARD OF REVIEW
[1,2] 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 admis-
sibility.1 In a civil case, the admission or exclusion of evidence
is not reversible error unless it unfairly prejudiced a substantial
right of the complaining party.2
1
American Central City v. Joint Antelope Valley Auth., 281 Neb. 742,807 N.W.2d 170
(2011), cert. denied ___ U.S. ___,132 S. Ct. 525
,181 L. Ed. 2d 351
.
2
Werner v. County of Platte, 284 Neb. 899,824 N.W.2d 38
(2012).
Nebraska Advance Sheets
SIMON v. DRAKE 793
Cite as 285 Neb. 784
ANALYSIS
The Court of Appeals did not explain why the trial court’s
admission of Garvin’s testimony was error. We address that
issue first because it is relevant to why we are reversing the
Court of Appeals’ decision with directions to vacate the district
court’s judgment and remand the cause for a new trial.
Neb. Evid. R. 7023 governs the admissibility of expert tes-
timony and provides that the witness must be qualified as an
expert: “If scientific, technical, or other specialized knowl-
edge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.”
(Emphasis supplied.)
[3-5] We review a trial court’s decision to admit or exclude
expert testimony under the appropriate standards for abuse
of discretion.4 But under rule 702, a trial court does not have
discretion to permit a witness who has not been qualified as an
expert to testify to issues that require an expert’s opinion. And
under Neb. Evid. R. 701,5
[i]f the witness is not testifying as an expert, his tes-
timony in the form of opinions or inferences is limited
to those opinions or inferences which are (a) rationally
based on the perception of the witness and (b) helpful to a
clear understanding of his testimony or the determination
of a fact in issue.
But Garvin did not limit his testimony to his perceptions of
Simon. And in medical malpractice cases, expert testimony by
a medical professional is normally required to establish causa-
tion and the standard of care under the circumstances.6
The record shows that the trial started on May 9, 2011.
Previously, on May 2, the court determined that because
3
Neb. Rev. Stat. § 27-702 (Reissue 2008).
4
See Gary’s Implement v. Bridgeport Tractor Parts, 281 Neb. 281,799 N.W.2d 249
(2011).
5
Neb. Rev. Stat. § 27-701 (Reissue 2008).
6
See Thone v. Regional West Med. Ctr., 275 Neb. 238,745 N.W.2d 898
(2008).
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794 285 NEBRASKA REPORTS
Drake had not designated Garvin as an expert, Garvin could
not testify on the standard of care or medical causation. And
during the side bar at trial, Simon’s counsel argued that he
had never had an opportunity to depose Garvin about his
expert opinions.
Yet, despite its previous ruling that Garvin could not testify
to the standard of care and medical causation, the court permit-
ted Garvin to testify, over objection, to the issues that required
expert testimony. Garvin’s testimony that the correct needle
size can vary and that multiple injections are not uncommon
was an opinion that Drake did not violate the standard of care
in using a 21⁄2-inch needle. His testimony that the medical lit-
erature failed to show a correlation between multiple needle
penetrations and an increased risk of infection was an opinion
that Drake’s multiple injections had not increased Simon’s
risk of infection. So the court permitted Garvin to testify to
standard of care issues that were obviously not focused on his
observations of Simon.
Furthermore, the court’s combined rulings permitted Garvin
to testify as an expert while denying Simon any opportunity to
discover facts relevant to Garvin’s qualifications as an expert
on hip injections or to discover the data that he had relied on
for his opinion on the increased risk of infection.7 We con-
clude that the trial court erred in permitting Garvin to testify
about standard of care issues and in refusing to give a curative
instruction to the jury.
Moreover, we disagree with the Court of Appeals that
Garvin’s testimony was substantially similar to the testimony
of the parties’ designated experts. Compared to the testimony
of a hired expert, a juror was likely to give great weight to
Garvin’s opinion because he was Simon’s treating physician
and testifying as an expert against his own patient. And the
court’s rulings meant that Simon had no meaningful oppor-
tunity to challenge the presumptive validity and weight of
Garvin’s opinions.
The jurors’ assumption of Simon’s trust in his doctor is
no small matter. Jurors know from their own experience
7
See Neb. Ct. R. Disc. § 6-326(4).
Nebraska Advance Sheets
SIMON v. DRAKE 795
Cite as 285 Neb. 784
that a treating physician carries the patient’s endorsement of
trust. This was amply illustrated by Drake’s attorney’s clos-
ing argument. And contrary to the Court of Appeals’ opinion,
Simon was not required to object to this argument to pre-
serve a claim of prejudice resulting from the admission of
Garvin’s testimony.
Although the court refused to give a curative instruction
because it concluded that the error was harmless, this statement
was effectively an overruling of Simon’s objections. And after
the court admitted Garvin’s testimony, Drake was entitled to
argue its probative effect in closing. So Simon did not waive an
objection to improper argument. Instead, the argument shows
that the Court of Appeals erred in concluding that Garvin
was just another expert in a battle of experts. Although the
substance of Garvin’s opinions was similar to that of Drake’s
expert, the weight of his opinions differed because Garvin, as
Simons’ treating physician, was cloaked in an aura of trust
and respect.
We addressed a similar issue in Barry v. Bohi.8 There, the
plaintiff sued her physician for negligently failing to detect
her breast cancer. During part of the time that the physician
provided treatment to the plaintiff, he was qualified under the
Nebraska Hospital-Medical Liability Act,9 limiting his mal
practice liability. The act required patients to submit claims
against qualified providers to a medical review panel before
filing suit. At that time, a claimant could not waive the
review,10 but a claimant could (and still can) select one of the
experts on the panel.11 The act also provides, then and now, that
the panel’s written report determining whether the standard of
care was met shall be admissible in a subsequent suit.12
The panel found that the plaintiff’s physician had met the
standard of care under the circumstances. In the subsequent
suit, the court received the report into evidence, so the jury
8
Barry v. Bohi, 221 Neb. 651,380 N.W.2d 249
(1986).
9
See Neb. Rev. Stat. §§ 44-2801 to 44-2855 (Reissue 2010).
10
See Barry, supra note 8.
11
See § 44-2841.
12
See § 44-2844(2).
Nebraska Advance Sheets
796 285 NEBRASKA REPORTS
would have reviewed the report during deliberations. It returned
a verdict for the defendant physician.
On appeal, we concluded that the court improperly admitted
the report for those treatment dates in which the physician was
not qualified under the act. We rejected the defendant physi-
cian’s argument that the error was not prejudicial because there
was independent evidence to establish that he had met the req-
uisite standard of care:
He correctly argues that, generally, if properly admitted
evidence exists to establish that which improperly admit-
ted evidence also establishes, the error in receiving the
inadmissible evidence is harmless and that harmless error
does not form a basis for the reversal of a judgment. .
. . Those general rules, however, rest on the premise that
the nature of the cumulative evidence is such that no
prejudice results from its improper admission into evi-
dence. That cannot be said of a written opinion rendered
by a panel convened pursuant to the act and numbering
among its members an expert selected by [the plaintiff]. .
. . Under such circumstances prejudice must be presumed
to result.13
As in this case, the plaintiff’s selection in Barry of an expert
physician signified her trust in his opinion. In Barry, because
of the plaintiff’s confidence in the expert’s opinion, the jury
would have given significant weight to it. In this case, this
effect was amplified when Garvin, testifying as an “expert”
against Simon, was his own treating physician. And we cannot
conclude that the weight the jury likely would have given to
Garvin’s opinions was not the tipping point when Drake’s only
expert conceded that he would not have used a 21⁄2-inch needle
to inject Simon. We conclude that Barry controls here and that
prejudice is presumed.
CONCLUSION
We conclude that the trial court erred in admitting Garvin’s
testimony regarding standard of care issues when he was not
13
Barry, supra note 8,221 Neb. at 656
,380 N.W.2d at 253
(emphasis
supplied).
Nebraska Advance Sheets
STATE v. AU 797
Cite as 285 Neb. 797
designated as an expert. We further conclude that the Court
of Appeals erred in holding that this error was not prejudicial.
Finding prejudicial error, we reverse the judgment of the Court
of Appeals and remand this matter with directions that it vacate
the district court’s judgment and remand this cause to the dis-
trict court for a new trial.
R eversed and remanded with directions.
Stephan, J., participating on briefs.
Wright, Miller-Lerman, and Cassel, JJ., not participating.
State of Nebraska, appellee, v.
Doan Q. Au, appellant.
___ N.W.2d ___
Filed May 3, 2013. No. S-12-040.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
2. Statutes. The interpretation of a statute presents a question of law.
3. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no
matter how minor, creates probable cause to stop the driver of a vehicle.
4. Police Officers and Sheriffs: Probable Cause. Probable cause merely requires
that the facts available to the officer would cause a reasonably cautious person to
believe that the suspect has committed an offense; it does not demand any show-
ing that this belief be correct or more likely true than false.
5. Statutes. Statutory language is to be given its plain and ordinary meaning.
6. ____. Absent a statutory indication to the contrary, words in a statute will be
given their ordinary meaning.
7. Words and Phrases. “Practicable” generally means capable of being done,
effected, or put into practice with the available means, i.e., feasible.
8. Probable Cause: Words and Phrases. Reasonable suspicion entails some mini-
mal level of objective justification for detention, something more than an incho-
ate and unparticularized hunch, but less than the level of suspicion required for
probable cause.
9. Constitutional Law: Criminal Law: Police Officers and Sheriffs: Investigative
Stops: Probable Cause. Under the Fourth Amendment, a policeman who lacks
probable cause but whose observations lead him reasonably to suspect that a
particular person has committed, is committing, or is about to commit a crime,
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