Mancinelli v. Hillcrest Millard

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
MANCINELLI v. HILLCREST MILLARD
Cite as 33 Neb. App. 544
Alyssa Lea Mancinelli, Personal Representative of
the Estate of Claire Ann Kruizenga, appellant,
v. Hillcrest Millard, LLC, a Nebraska
limited liability company, appellee.
___ N.W.3d ___
Filed April 15, 2025. 	No. A-24-241.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences in that
party’s favor.
3. Summary Judgment: Proof. The party moving for summary judgment
must make a prima facie case by producing enough evidence to show
the movant would be entitled to judgment if the evidence were uncon-
troverted at trial.
4. ____: ____. If the burden of proof at trial would be on the nonmov-
ing party, then the party moving for summary judgment may satisfy
its prima facie burden either by citing to materials in the record that
affirmatively negate an essential element of the nonmoving party’s
claim or by citing to materials in the record demonstrating that the
nonmoving party’s evidence is insufficient to establish an essential
element of the nonmoving party’s claim.
5. ____: ____. If the party moving for summary judgment makes a prima
facie case, the burden shifts to the nonmovant to produce evidence
showing the existence of a material issue of fact that prevents judgment
as a matter of law. But in the absence of a prima facie showing by the
movant that he or she is entitled to summary judgment, the opposing
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
MANCINELLI v. HILLCREST MILLARD
Cite as 33 Neb. App. 544
party is not required to reveal evidence which he or she expects to pro-
duce at trial.
6. Malpractice: Physician and Patient: Proximate Cause: Expert
Witnesses. To make a prima facie case for medical malpractice, a
plaintiff must show (1) the applicable standard of care, (2) that the
defendant(s) deviated from that standard of care, and (3) that this devia-
tion was the proximate cause of the plaintiff’s harm. Generally, expert
testimony is required on each element.
7. Appeal and Error. An appellate court will not consider an issue on
appeal that was not passed upon by the trial court.
8. Malpractice: Expert Witnesses: Proximate Cause. Although expert
testimony is almost always required to prove proximate causation, the
common knowledge exception applies to proximate causation in profes-
sional negligence cases.
9. Malpractice: Expert Witnesses. Under the common knowledge excep-
tion, causation may be inferred without expert testimony if the causal
link between the defendant’s negligence and the plaintiff’s injuries is
sufficiently obvious to laypersons.
10. Malpractice: Expert Witnesses: Words and Phrases. The common
knowledge exception for professional negligence purposes is limited to
cases of extreme and obvious misconduct.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Heather Voegele and Andreanna C. Smith, of Voegele Anson
Law, L.L.C., for appellant.
David L. Welch and Maggie L. Brokaw, of Pansing, Hogan,
Ernst & Buser, L.L.P., for appellee.
Riedmann, 	Chief 	Judge, 	and 	Bishop 	and 	Arterburn,
Judges.
Arterburn, Judge.
INTRODUCTION
Alyssa Lea Mancinelli, as the personal representative of
her late mother Claire Ann Kruizenga’s estate, brought a neg-
ligence and wrongful death action against Hillcrest Millard,
LLC (Hillcrest), arising from Kruizenga’s stay at Hillcrest’s
skilled nursing facility. Mancinelli appeals the order of the

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
MANCINELLI v. HILLCREST MILLARD
Cite as 33 Neb. App. 544
district court for Douglas County, which granted summary
judgment to Hillcrest. Upon our review, we affirm the order of
the district court.
BACKGROUND
In March 2020, at the age of 80, Kruizenga underwent back
surgery and was thereafter admitted to Hillcrest for rehabilita-
tion services and care. Kruizenga’s goal was to complete her
therapy and return to the assisted living facility where she had
resided prior to surgery. In addition to her postsurgery back
pain, Kruizenga suffered from a litany of other health issues,
including a urinary tract infection, essential hypertension,
osteoporosis, history of deep vein thrombosis, frequent falls,
anemia, obesity, memory loss, depression, anxiety, chronic
pain, cognitive decline, fibromyalgia, hyperparathyroidism,
sleep apnea, and chronic respiratory failure with hypoxia.
Toward the end of April, Kruizenga’s back pain had improved
some, but she continued to participate in therapy 3 days a
week and received daily oxygen therapy.
Around this time, the COVID-19 pandemic began impacting
the nation. On May 5, 2020, Hillcrest notified its patients and
their families that a patient had tested positive for COVID-19
and was thereafter removed from the facility. Hillcrest reported
that potential exposure to other patients was minimal, as the
infected patient was only at the facility for 24 hours and had
been isolated in a private room prior to removal. Hillcrest
affirmed that it would continue to follow facility policies and
procedures to ensure patient safety.
On or around May 9, 2020, Kruizenga began having trouble
breathing. On May 11, Kruizenga was tested for COVID-19,
and the following day, the test results came back positive.
Kruizenga was transported to a local hospital for treatment.
Our record does not contain Kruizenga’s medical documents
from this hospital stay. However, Mancinelli asserts that the
hospital staff diagnosed Kruizenga with respiratory illness,
pneumonia, sepsis, septic shock, low blood pressure, low blood

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
MANCINELLI v. HILLCREST MILLARD
Cite as 33 Neb. App. 544
oxygen saturation, acute respiratory distress syndrome, and
dehydration. Kruizenga was placed on a ventilator to assist her
in breathing. On May 21, Kruizenga’s family made the deci-
sion to “transition [her] to comfort care.” Kruizenga passed
away the following day.
On March 9, 2022, Mancinelli filed a complaint against
Hillcrest in the district court, alleging negligence and wrongful
death. Hillcrest filed an answer and denied any negligence. On
January 23, 2024, Hillcrest filed a motion for summary judg-
ment. Mancinelli opposed Hillcrest’s motion, and a hearing
was held on February 27.
At the summary judgment hearing, the court received evi-
dence from both Hillcrest and Mancinelli. Hillcrest provided
the court with affidavits from Dr. Anthony L. Hatcher, a
board-certified family physician and chief medical officer
at Hillcrest; from Dr. William M. Johnson, a board-certified
pulmonologist; and from a registered nurse. Each expert opin-
ion provided was based upon a reasonable degree of medical
certainty. Hatcher, Johnson, and the nurse all averred that they
were familiar with the standard of care applicable to rehabili-
tation facilities and that Hillcrest did not breach that standard
of care in its treatment of Kruizenga. Hatcher and Johnson
also averred that Hillcrest’s actions did not proximately cause
any injury or damage to Kruizenga. Johnson stated that “[a]s
far as how [Kruizenga] contracted COVID-19, it is impossible
to determine.”
Mancinelli 	provided 	the 	court 	with 	several 	exhibits,
including her personal affidavit and deposition, her sister
Lisa Naylon’s affidavit, an assortment of Kruizenga’s medi-
cal records concerning her surgery and stay at Hillcrest, and
an expert affidavit from Jesse Bartek, a staff nurse. Both
Mancinelli and Naylon averred that on May 10, 2020, while
they were visiting Kruizenga, they observed Hillcrest staff
members in Kruizenga’s room without gloves or masks on.
Mancinelli and Naylon stated that the staff members were
interacting with Kruizenga and handling her medications.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
MANCINELLI v. HILLCREST MILLARD
Cite as 33 Neb. App. 544
Mancinelli and Naylon also stated that Kruizenga’s room was
in disarray with tissues and trash littering the floor.
Bartek averred that she was familiar with the standard of
care applicable in this case and that Hillcrest had breached
that standard by failing to administer COVID-19 testing at the
onset of symptoms. Bartek also stated that Hillcrest failed to
provide adequate education to staff on the appropriate use of
personal protective equipment, including gloves and masks,
to decrease the spread of COVID-19 infections. Her opinions
were based upon a reasonable degree of “nursing certainty.”
Once all the evidence was submitted, the parties presented
arguments on the motion. Hillcrest argued that its three medi-
cal expert affidavits showed that there was no issue of material
fact in the case. Hillcrest also asserted that Bartek’s affidavit,
which was the only expert affidavit Mancinelli provided, did
not address causation. Thus, Hillcrest asserted that summary
judgment was appropriate.
Mancinelli countered that causation was established by her
evidence that Hillcrest staff members did not wear gloves
or masks in accordance with applicable COVID-19 policies.
Mancinelli also asserted that the common knowledge excep-
tion applied in this case, meaning that a jury could infer
that Hillcrest’s alleged negligence caused Kruizenga’s injuries
without relying on expert medical testimony. The court took
the matter under advisement.
On March 6, 2024, the court issued an order granting
Hillcrest’s motion for summary judgment. The court deter-
mined that Mancinelli’s claim was “premised on the alleged
professional negligence or malpractice” of Hillcrest. Applying
the relevant precedents, the court found that Hillcrest had
made out a prima facie case for summary judgment and spe-
cifically cited Johnson’s affidavit as evidence for that finding.
Thus, the burden shifted to Mancinelli to prove that a mate-
rial issue of fact existed. The court found that Mancinelli
presented sufficient evidence to create a material issue of fact
with respect to whether Hillcrest’s services met the standard

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
MANCINELLI v. HILLCREST MILLARD
Cite as 33 Neb. App. 544
of care. However, the court found that Mancinelli had failed to
offer any expert testimony to indicate that Hillcrest’s alleged
negligence was the proximate cause of Kruizenga’s illness
and death. The court also found that the common knowledge
exception did not apply in this case. Accordingly, Mancinelli’s
complaint was dismissed.
Mancinelli appeals.
ASSIGNMENTS OF ERROR
Mancinelli generally assigns that the district court erred in
granting Hillcrest’s motion for summary judgment. She specifi-
cally argues, restated, that the court erred in either (1) shifting
the burden to her on the issue of proximate cause or (2) finding
that the common knowledge exception to expert testimony was
inapplicable in this case.
STANDARD OF REVIEW
[1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. Woodward v. Saint Francis Med. Ctr., 316 Neb. 737,
6 N.W.3d 794 (2024). An appellate court reviews the district
court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party and
drawing all reasonable inferences in that party’s favor. Id.
ANALYSIS
Proximate Cause.
Mancinelli assigns that the district court erred in shifting
the burden to her on the issue of proximate cause. She spe-
cifically argues that Hillcrest failed to establish a prima facie
case that it did not proximately cause Kruizenga’s illness and
death. She points out that in Johnson’s affidavit, he says that
no injury occurred as a result of Hillcrest’s care but also states
that it is impossible to determine how Kruizenga contracted
COVID-19. Mancinelli asserts that these statements negate

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
MANCINELLI v. HILLCREST MILLARD
Cite as 33 Neb. App. 544
each other and actually establish that there is a genuine issue
of material fact concerning causation. She concludes that
because this was the only affidavit the district court cited
in its summary judgment order, summary judgment was not
appropriate.
Hillcrest counters that the two statements are not mutually
exclusive. It asserts that it is reasonable for Johnson to aver
that while he cannot determine how Kruizenga contracted
COVID-19, he knows to a reasonable degree of medical
certainty that she did not contract COVID-19 as a result of
Hillcrest’s alleged negligence. Hillcrest concludes that the
court properly shifted the burden to Mancinelli.
[3-5] We begin with a review of the framework that governs
summary judgment. Summary judgment is proper only when
the pleadings, depositions, admissions, stipulations, and affi-
davits in the record disclose that there is no genuine issue as
to any material fact or as to the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law. Clark v. Scheels All Sports,
314 Neb. 49, 989 N.W.2d 39 (2023). The party moving for
summary judgment must make a prima facie case by produc-
ing enough evidence to show the movant would be entitled to
judgment if the evidence were uncontroverted at trial. Id. If
the burden of proof at trial would be on the nonmoving party,
then the party moving for summary judgment may satisfy its
prima facie burden either by citing to materials in the record
that affirmatively negate an essential element of the nonmoving
party’s claim or by citing to materials in the record demon-
strating that the nonmoving party’s evidence is insufficient to
establish an essential element of the nonmoving party’s claim.
Id. If the moving party makes a prima facie case, the burden
shifts to the nonmovant to produce evidence showing the exis-
tence of a material issue of fact that prevents judgment as a
matter of law. Id. But in the absence of a prima facie showing
by the movant that he or she is entitled to summary judgment,
the opposing party is not required to reveal evidence which he
or she expects to produce at trial. Id.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
MANCINELLI v. HILLCREST MILLARD
Cite as 33 Neb. App. 544
[6] To make a prima facie case for medical malpractice, a
plaintiff must show (1) the applicable standard of care, (2) that
the defendant(s) deviated from that standard of care, and (3)
that this deviation was the proximate cause of the plaintiff’s
harm. Konsul v. Asensio, 316 Neb. 874, 7 N.W.3d 619 (2024).
Generally, expert testimony is required on each element. Id.
In this case, the district court did not err in shifting the
burden to Mancinelli on the issue of proximate cause. In sup-
port of its motion for summary judgment, Hillcrest presented
three medical expert affidavits. All three experts concluded
that Hillcrest did not violate the standard of care. Hatcher and
Johnson also averred that Hillcrest did not proximately cause
any injury to Kruizenga. Thus, Hillcrest showed that if its
evidence were uncontroverted at trial, it would be entitled to
judgment. The burden then properly shifted to Mancinelli to
show the existence of a material issue of fact.
[7] Mancinelli’s contention that Johnson’s affidavit provides
conflicting statements on the issue of proximate cause is with-
out merit. At the outset, we question whether we can consider
this issue, as Mancinelli did not raise this argument in the dis-
trict court. While she asked the court to consider the evidence
she submitted in opposition to summary judgment, she did not
argue that Johnson’s affidavit created a material issue of fact
with regard to causation. An appellate court will not consider
an issue on appeal that was not passed upon by the trial court.
Thomas v. Peterson, 307 Neb. 89, 948 N.W.2d 698 (2020).
Assuming without deciding that we can reach the merits
of Mancinelli’s argument, we find that Johnson’s opinions do
not create a material issue of fact. Johnson’s opinion that it is
impossible to determine how Kruizenga contracted COVID-
19 does not negate or contradict his opinion that Hillcrest’s
actions did not proximately cause Kruizenga’s illness. It is not
unreasonable for experts, based upon a reasonable degree of
medical certainty, to rule out one alleged cause of an injury
or illness while also opining that, based upon the evidence
provided, the true cause is unknown to them.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
MANCINELLI v. HILLCREST MILLARD
Cite as 33 Neb. App. 544
Further, Mancinelli’s interpretation of Johnson’s opinion
does not bolster her theory of the case. If it is truly impossible
to determine how Kruizenga contracted COVID-19, Mancinelli
would be unable to prove that any alleged negligence commit-
ted by Hillcrest caused Kruizenga’s injures. We hold that the
district court did not err in shifting the burden to Mancinelli
after Hillcrest made a prima facie case in support of its motion
for summary judgment. We further find no error in the district
court’s determination that Mancinelli provided no expert evi-
dence that negated the opinions of Hillcrest’s experts regard-
ing causation.
Common Knowledge Exception.
Alternatively, Mancinelli assigns that the district court erred
in finding that the common knowledge exception to expert
testimony was inapplicable in this case. We disagree.
[8-10] Although expert testimony is almost always required
to prove proximate causation, the common knowledge excep-
tion applies to proximate causation in professional negligence
cases. See Thone v. Regional West Med. Ctr., 275 Neb. 238,
745 N.W.2d 898 (2008). Under the exception, causation may
be inferred without expert testimony if the causal link between
the defendant’s negligence and the plaintiff’s injuries is suf-
ficiently obvious to laypersons. Id. This exception is limited
to cases of extreme and obvious misconduct. Id. Examples
include failure to remove a surgical instrument from a patient’s
body following a procedure or amputating an incorrect limb.
Id. The Nebraska Supreme Court has been reluctant to apply
this exception in cases where the alleged professional miscon-
duct was less than obvious without some degree of technical
knowledge. Id.
Here, in its rendition of the facts, the district court noted that
Kruizenga “passed away from complications from COVID-19
pneumonia.” However, the court rejected Mancinelli’s conten-
tion that the common knowledge exception could be relied
upon to create a genuine issue of material fact as to the spe-
cific event that caused Kruizenga to contract COVID-19. We,

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
MANCINELLI v. HILLCREST MILLARD
Cite as 33 Neb. App. 544
too, will focus on the issue of how COVID-19 was contracted
as opposed to the causation of death. While a genuine issue
of material fact may exist as to whether Hillcrest failed to
meet the standard of care, we cannot find, without expert
testimony to support that conclusion, that the alleged failure
is so extreme and obvious that a layperson could infer that
Kruizenga contracted COVID-19 due to Hillcrest’s failure.
Here, there is no evidence of exactly how Kruizenga came
to be infected with COVID-19. Mancinelli’s evidence provides
a single example where the standard of care had arguably
not been met. She generally alleges that Hillcrest deviated
from the standard of care, which led to Kruizenga’s exposure
and infection. We recognize that Mancinelli’s argument gains
some support from the fact that Hillcrest was not open to the
public for much of the time Kruizenga was placed there. Even
so, during that period, she had contact with many caregivers.
Without expert testimony, we have no showing that she could
only have contracted COVID-19 from a person who failed
to observe the applicable standard of care. Without expert
medical testimony identifying the specific act that caused
her illness, the finder of fact would be left to speculate as to
how Kruizenga contracted COVID-19. Without this evidence,
it cannot be determined that there is an obvious causal link
between Hillcrest’s alleged failure to follow the standard of
care and Kruizenga’s illness and death. This assignment of
error fails.
CONCLUSION
For the foregoing reasons, we affirm the order of the district
court granting summary judgment to Hillcrest.
Affirmed.