McKinney v. Matthias I. Okoye & Neb. Forensic Med. Servs., P.C.
| Decision Date | 31 January 2014 |
| Docket Number | No. S–13–155,S–13–155 |
| Citation | 842 N.W.2d 581,287 Neb. 261 |
| Parties | Carla McKinney, Appellant, v. Matthias I. Okoye and Nebraska Forensic Medical Services, P.C., Appellees. |
| Court | Nebraska Supreme Court |
287 Neb. 261
842 N.W.2d 581
Carla McKinney, Appellant,
v.
Matthias I. Okoye and Nebraska Forensic Medical Services, P.C., Appellees.
No. S–13–155
Supreme Court of Nebraska.
Filed January 31, 2014
[842 N.W.2d 585]
Appeal from the District Court for Lancaster County: Paul D. Merritt, Jr., Judge. Reversed.
George H. Moyer, Madison, of Moyer & Moyer, for appellant.
James A. Snowden, Lincoln, and Nathan D. Anderson, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., for appellees.
Wright, Connolly, McCormack, and Miller–Lerman, JJ., and Pirtle, Judge.
1. 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 was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.
2. Actions: Proof. In a malicious prosecution case, the conjunctive elements for the plaintiff to establish are (1) the commencement or prosecution of the proceeding against the plaintiff, (2) its legal causation by the present defendant, (3) its bona fide termination in favor of the plaintiff, (4) the absence of probable cause for such proceeding, (5) the presence of malice therein, and (6) damages.
3. Actions: Public Officers and Employees: Liability. A person who supplies information to prosecuting authorities is not liable for the prosecutors' action so long as any ensuing prosecution is left entirely to the officials' discretion.
4. Actions: Public Officers and Employees. A prosecution is not considered the result of the prosecuting authorities' independent discretion if the informant either (1) directs or counsels officials in such a way so as to actively persuade and induce the officers' decision or (2) knows that the information provided is false or misleading.
5. Actions: Public Officers and Employees. A person who knowingly provides false or misleading information to a public officer may be liable for malicious prosecution even if that person brought no pressure to bear on the public officer and left the decision to prosecute entirely in the hands of that public officer.
6. Negligence: Expert Witnesses: Testimony: Intent. Expert testimony may establish a professional's conduct was so far afield of accepted professional standards or so divergent from the conduct of any minimally competent professional that it is reasonable to infer a knowing or intentional state of mind.
7. Intent: Proof. State of mind is difficult to prove, and rarely will the plaintiff be able to provide a “smoking gun.”
8. Summary Judgment: Intent. Cases where the underlying issue is one of motive or intent are particularly inappropriate for summary judgment.
[842 N.W.2d 586]
9. Actions: Intent: Proof. Legal causation in a malicious prosecution action is demonstrated when but for the false or misleading information, the decision to prosecute would not have been made.
10. Probable Cause: Proof. If there is insufficient undisputed evidence to show probable cause as a matter of law, the question of probable cause is a mixed question of fact and law.
11. Actions: Probable Cause. The element of probable cause in a malicious prosecution action is evaluated from the perspective of the defendant in the action who is allegedly legally responsible to the plaintiff for the prosecution, not from the perspective of the nonparty prosecuting officials.
12. Criminal Law: Probable Cause. The question of probable cause is whether a person in the defendant's position had reasonable grounds to suspect, based on the facts known or reasonably believed by the defendant at the time, that the crime prosecuted had been committed.
13. Probable Cause. Probable cause does not depend upon mere belief, however sincerely entertained; because if that were so, any citizen would be liable to arrest and imprisonment, without redress, whenever any person, prompted by malice, saw fit to swear that he believed the accused was guilty of the offense charged.
14. Criminal Law: Probable Cause. No probable cause exists if a defendant knew that the facts stated to prosecuting authorities supporting the suspicions of a crime were false or misleading.
15. Intent: Words and Phrases. Malice does not refer to mean or evil intent, as a layman might ordinarily think.
16. Intent. The lack of any personal ill will does not necessarily negate the existence of malice.
17. Actions: Intent: Words and Phrases. Malice, in the context of a malicious prosecution action, is any purpose other than that of bringing an offender to justice.
18. Public Officers and Employees: Evidence. Knowingly providing false or misleading information to prosecuting authorities may support the inference of malice.
McCormack, J.
A daycare provider brought a malicious prosecution action against the pathologist whose autopsy report was used to charge her with felony child abuse resulting in death. The charge was eventually dropped after two forensic pathologists retained by the daycare provider concluded the cause of death of the infant under her care was sudden infant death syndrome (SIDS). The district court granted summary judgment in favor of the pathologist on the malicious prosecution claim. We must determine whether the inference that the pathologist knowingly provided false or misleading information to law enforcement can reasonably be drawn from expert testimony that the pathologist's autopsy report was false and was “shockingly” unscientific.
[842 N.W.2d 587]
Carla McKinney had been providing licensed daycare out of her home for almost 21 years without incident. In 2007, McKinney started caring for a 6–week–old infant boy. Two months later, the infant died in McKinney's care.
McKinney explained to the police that after feeding the infant, she laid him down for a nap. When McKinney went to wake the infant, he was not breathing. McKinney was unsuccessful in her attempts to revive the infant with cardiopulmonary resuscitation. Although McKinney first told police that the infant remained sleeping on his back until she found him not breathing, she later explained that she had turned the infant onto his stomach when he had fussed before falling asleep.
Pathologist Dr. Matthias I. Okoye, pursuant to his duties under a contract with Lancaster County, conducted an autopsy on the infant. Okoye's report determined that the cause of death was homicide through blunt force trauma to the head (associated with closed head injury) and asphyxiation. As evidence of blunt force trauma to the head, the report listed two areas of acute subarachnoid hemorrhage, three areas of acute subdural hemorrhage, acute epidural and intraspinal hemorrhage, diffuse acute cerebral edema, a faint contusion on the head, and a recent contusion on the upper lip. Okoye listed 11 distinct clinical findings supporting asphyxia, which we will not list here. The report also listed six “faint red contusions” on the trunk and extremities of the body, as evidence of minor blunt force trauma to the body. In making the autopsy report, Okoye relied on his clinical observations during the autopsy, laboratory tests, reports by the police of McKinney's description of events, and a computed tomography (CT) whole body scan that Okoye had ordered.
During questioning, police investigators told McKinney that the pathologist's provisional report demonstrated the infant had died from a blunt trauma to the head while in her care and that she needed to provide an explanation. The transcription of the police interviews reflects that McKinney eventually said that after lifting the infant from an “Exersaucer” and while in the process of laying him on his side against a “boppy” pillow on the floor, her hand slipped and his head may have hit the floor from a couple inches of height.
McKinney was charged with felony child abuse resulting in death. One of the prosecuting attorneys explained that the Lancaster County Attorney's office did not decide to file the charge based on Okoye's autopsy report alone. She averred that the decision was also based upon the CT scan, McKinney's allegedly inconsistent accounts to the police of events the day the infant died, and McKinney's perceived admissions during questioning that she caused the infant to hit his head either while being placed on “a ‘boppy pillow’ ” or when she dropped the infant to the floor from waist height after picking him out of “an exercise saucer.”
McKinney's counsel agreed to waive the probable cause hearing in exchange for prompt delivery of police reports. The district court issued an “Order of Probable Cause Finding” without a hearing. Approximately 1 year later, the Lancaster County Attorney's office dropped the charges. McKinney alleges that this occurred after pathologists retained by McKinney found that the infant had died of SIDS and that there was no evidence supporting any traumatic injury.
[842 N.W.2d 588]
McKinney sued Okoye and his wholly owned corporation, Nebraska Forensic Medical Services, P.C. (collectively appellees), for malicious prosecution stemming from Okoye's autopsy report. After appellees' motion to dismiss based on absolute privilege was unsuccessful,1 appellees moved for summary judgment.
At the hearing on appellees' motion for summary judgment, differing expert testimony was presented on the correctness of the autopsy report and the soundness of Okoye's methodology. Okoye generally defended his findings, conclusions, and methods. Appellees' expert witness, a forensic pathologist, also generally defended the autopsy report, except that he found Okoye's diagnosis of asphyxia to be a “diagnosis with no physical evidence offered other than the very non-specific and ubiquitous findings.” Forensic pathologists provided by McKinney, Drs. Janice Ophoven and Robert...
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