Anderson v. Babbe ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/27/2019 12:06 AM CST
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Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
ANDERSON v. BABBE
Cite as 304 Neb. 186
R ickey A nderson and Lynnette A nderson,
appellees, v. Gregory J. Babbe,
M.D., et al., appellants.
___ N.W.2d ___
Filed October 4, 2019. No. S-18-847.
1. Motions for Mistrial: Appeal and Error. Decisions regarding motions
for mistrial are directed to the discretion of the trial court and will be
upheld in the absence of an abuse of discretion.
2. Jury Instructions. The giving or refusing to give a cautionary instruc-
tion that the jury is not to allow sympathy or prejudice to control or
affect its finding is within the discretion of the trial court.
3. Motions for New Trial: Appeal and Error. An appellate court reviews
a denial of a motion for new trial for an abuse of discretion.
4. Directed Verdict: Appeal and Error. In reviewing a trial court’s rul-
ing on a motion for directed verdict, an appellate court must treat the
motion as an admission of the truth of all competent evidence submit-
ted on behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed is entitled
to have every controverted fact resolved in its favor and to have the
benefit of every inference which can reasonably be deduced from
the evidence.
5. Jurors: Damages. A “Golden Rule” argument tells the jurors to place
themselves in the plaintiff’s shoes and award the amount they would
“charge” to undergo equivalent disability, pain, and suffering.
6. Jurors: Appeal and Error. Although an invitation to jurors to put them-
selves in the place of a party is improper argument, it is not a ground for
a reversal unless the jurors were prejudicially affected by the remark.
7. Juror Qualifications. Parties may not use voir dire to impanel a jury
with a predetermined disposition or to indoctrinate jurors to react favor-
ably to a party’s position when presented with particular evidence.
8. Directed Verdict: Waiver: Appeal and Error. When a defendant’s
motion for directed verdict made at the close of plaintiff’s case is
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Cite as 304 Neb. 186
overruled and the defendant introduces evidence in support of allega-
tions contained in its answer, the defendant waives any right to insist
that the court erred in overruling the motion.
9. Directed Verdict: Appeal and Error. A directed verdict is proper at the
close of all the evidence only when reasonable minds cannot differ and
can draw but one conclusion from the evidence, that is, when an issue
should be decided as a matter of law.
10. Physicians and Surgeons: Expert Witnesses: Proof. To establish the
customary standard of care in a particular case, expert testimony by a
qualified medical professional is normally required.
11. Directed Verdict: Evidence. A defendant, by introducing evidence after
his or her motion for a directed verdict is denied, takes the chance that
his or her evidence will aid the plaintiff’s case.
12. Evidence. A plaintiff has a right to have the submission of his or her
case determined from all of the evidence regardless of who intro-
duces it.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
Mary M. Schott and Joseph S. Daly, of Sodoro, Daly &
Shomaker, P.C., L.L.O., for appellants.
Patrick J. Cullan and Joseph P. Cullan, of Cullan & Cullan,
L.L.C., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
A patient sued his doctors and obtained a favorable jury
verdict. The doctors contend that (1) an improper “Golden
Rule” discussion occurred during voir dire and (2) the patient
failed to establish a breach of the standard of care. Because the
voir dire discussion did not rise to a Golden Rule exhortation,
the court did not abuse its discretion in denying requests for
a mistrial, curative instruction, and new trial. The court did
not err in denying the doctors’ motions for directed verdict:
The doctors waived any error in the denial at the close of the
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ANDERSON v. BABBE
Cite as 304 Neb. 186
patient’s case by presenting evidence, and evidence subse-
quently adduced established a breach of the standard of care.
We affirm.
II. BACKGROUND
1. Pleadings
Elisabeth L. Backer, M.D., and Gregory J. Babbe, M.D.,
practiced medicine in Omaha, Nebraska. They were employees
of UNMC Physicians.
In November 2012, Backer and Babbe provided medical care
and treatment to Rickey Anderson. On November 1, Backer
saw Anderson for a red, swollen, right lower extremity. On
November 6, Anderson was admitted to the Nebraska Medical
Center. While hospitalized, he was under the care and treat-
ment of Babbe. Anderson was discharged on November 10, and
Backer thereafter continued to provide medical care regarding
his right lower extremity. Neither Backer nor Babbe performed
an x ray of Anderson’s right lower extremity. Neither doctor
reevaluated the diagnosis of cellulitis.
In January 2013, Anderson consulted with a podiatrist and
was told that he had “Charcot foot.” He was informed that if
x rays had been taken in November 2012, the deformity would
have been revealed and significant deterioration of his foot
could have been prevented.
Anderson and his wife sued Backer, Babbe, and UNMC
Physicians (collectively the doctors) for medical malpractice
and loss of consortium. The doctors affirmatively alleged that
they acted with the degree of care, skill, and knowledge ordi-
narily possessed by like physicians, under like circumstances,
in Omaha.
2. Voir Dire
The matter proceeded to a jury trial. As we set forth in
more detail in our analysis, the Andersons’ counsel wished to
talk with the venire about physical health and several prospec-
tive jurors discussed the importance of mobility. The doctors
moved for a mistrial, but the court overruled the motion. It
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ANDERSON v. BABBE
Cite as 304 Neb. 186
also declined to give an admonishment or curative instruction
at that time.
3. Evidence at Trial
The Andersons called two expert witnesses to testify during
their case in chief. One was a podiatrist who treated Anderson
and practiced in the Omaha area. Other than a 2-month rota-
tion in residency, the podiatrist had never practiced family
medicine. But the podiatrist was an adjunct clinical instructor
who worked with residents from the University of Nebraska
Medical Center during an elective rotation, and based on that,
he was familiar with the material that family practice physi-
cians training at the University of Nebraska Medical Center
were to know with respect to foot care. The other expert was
a family physician who was chairman of a community hospital
in Baltimore, Maryland.
The podiatrist saw Anderson following a referral by Backer
to the podiatrist’s partner. The referral was for cellulitis and
the removal of a toenail. The podiatrist opined that had the
Charcot foot been diagnosed and treated appropriately on
or prior to November 28, 2012, Anderson would not have
suffered damage to his foot. The podiatrist explained how
Charcot occurs in a patient with neuropathy: an event causes
bones to release an osteoclast, the osteoclast releases a chemi-
cal that causes inflammation and redness, and “as the event
occurs, you have two months to get it set up, immobilize it,
[and] protect the foot.” According to the podiatrist, if the foot
is immobilized and the inflammation is allowed to resolve,
the foot generally will not have a deformity. Having reviewed
Anderson’s records, the podiatrist testified that Anderson
should have been immobilized and placed into a protective
boot on November 1.
The podiatrist testified that based on an algorithm compiled
by an international task force on Charcot foot, obtaining an
x ray is the first thing that should be done if there is a clinical
suspicion of a Charcot event. No x ray was taken until January
22, 2013. When asked if he had an opinion as to whether
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ANDERSON v. BABBE
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the care Anderson received was malpractice, the podiatrist
answered: “My opinion is it was a missed diagnosed Charcot
and it was a mistake. So, unfortunately, that means it’s mal-
practice, that we made a mistake and now there’s damages
that occurred because of our mistakes.”
The family physician conducted a forensic review of the
case. He explained that Anderson had a neuropathy, which put
him at increased risk for developing a Charcot joint. Although
Anderson presented himself with what may have “looked like
a cellulitis,” it did not “behave like a cellulitis.” The family
physician testified that “in a patient with neuropathy, who had
these kinds of symptoms, I believe that [the doctors] needed
to think about the possibility of a Charcot joint.” He testified
that it was unreasonable to not perform any x ray or MRI on
Anderson on November 1, 2012, or thereafter. The following
colloquy occurred between the Andersons’ counsel and the
family physician:
Q. And do you have an opinion whether or not each and
every one of the opinions you’ve proffered with respect to
the violations of the standard of care independently was
a — was a proximate cause of . . . Anderson’s injuries?
A. Yes.
Q. So the failure to consider Charcot on each and every
day was a cause of . . . Anderson’s condition?
A. I believe so, yes.
Q. Well, alternatively, had they considered Charcot at
any time in November, do you have an opinion whether
or not we’d be here today, that he would have suffered the
fractures, dislocations and subluxations that he did?
A. From what I know about Charcot, if it’s treated at
Stage 0, it has an excellent prognosis.
After the Andersons rested, the doctors moved for a directed
verdict. They asserted that neither of the Andersons’ expert
witnesses mentioned the words “‘standard of care.’” The doc-
tors noted that the family physician was never asked if he was
familiar with the standard of care expected of family practice
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ANDERSON v. BABBE
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physicians in Omaha, that the podiatrist was not asked if he
knew what the standard of care was, and that neither expert
testified that a breach of the standard of care occurred.
The court similarly did not recall hearing “the usual question
point-blank.” But the court remarked that the “substance of the
testimony is really more important than the choice of words.”
The court overruled the motion for a directed verdict.
During the doctors’ case in chief, the Andersons’ counsel
cross-examined Backer about the standard of care. Backer
agreed that if a patient with neuropathy has symptoms wholly
consistent with Charcot foot and if nothing is inconsistent with
that condition, then the standard of care requires a physician to
suspect Charcot foot. Backer recalled Babbe’s testimony that
Anderson’s condition was wholly consistent with Charcot foot,
that nothing was inconsistent with Charcot foot on November
6, 2012, and that Babbe did not consider Charcot foot. The
Andersons’ counsel then asked Backer, “Do you agree, based
on that evidence, that . . . Babbe violated the standard of
care?” The doctors’ counsel objected, explaining that Backer
had not been identified as an expert witness to testify as to
anybody but herself. The Andersons’ counsel directed the court
to the doctors’ third supplemental answers to interrogatories
in which they designated their expert witnesses as “Dr. Frey”
along with Babbe and Backer and stated that “they” would tes-
tify that “they” met the standard of care. The court overruled
the objection.
Backer testified that when there is a clinical suspicion of
Charcot foot, the standard of care required a specialty con-
sultation with either an orthopedist or a podiatrist. Backer
testified that based upon Babbe’s testimony, he failed to meet
the standard of care because he did not get any such specialty
consultation. During questioning, Backer agreed that she was
designated as an expert to defend the conduct of herself
and Babbe.
Prior to seeing Anderson, Babbe spoke with Backer, who
informed Babbe that Anderson had a foot infection that was
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ANDERSON v. BABBE
Cite as 304 Neb. 186
not improving. Babbe first saw Anderson on November 6,
2012. He diagnosed Anderson with cellulitis, and his diagnosis
never changed. Babbe agreed that Anderson met the diagnostic
criteria for Charcot foot every time Babbe saw him, and Babbe
testified that he never ruled out Charcot foot. But Babbe testi-
fied that Anderson also had more swelling and redness up into
his calf and responded to antibiotic treatment. According to
Babbe, antibiotics will have no effect on redness caused by
Charcot foot. Further, Babbe conducted a physical examination
of Anderson’s right foot and ankle on each of the 4 days that
Babbe saw him and he never noted any abnormalities to the
structure of the foot or ankle. Babbe testified that he was not
negligent and did not commit malpractice.
At the close of all evidence, the doctors renewed their
motion for directed verdict. The court denied the motion.
4. Verdict
The jury found that the Andersons met their burden of proof
against each doctor. The jury allocated 75 percent of the liabil-
ity to Babbe and UNMC Physicians and 25 percent to Backer
and UNMC Physicians. The jury determined Anderson’s eco-
nomic damages to be $100,000 and his noneconomic damages
to be $500,000. The jury decided Anderson’s wife’s loss of
consortium damages amounted to $200,000. The court entered
judgment on the verdict for the Andersons in the amount
of $800,000.
The doctors filed a motion for new trial or, alternatively,
for judgment notwithstanding the verdict. The court denied the
motion. The doctors filed a timely appeal, which we moved to
our docket.1
III. ASSIGNMENTS OF ERROR
The doctors assign three errors with respect to jury selec-
tion. They allege the court erred in (1) failing to grant a
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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mistrial, (2) failing to give a curative instruction, and (3) over-
ruling their motion for new trial.
The doctors also assign three errors related to the alleged
failure of the Andersons to establish a breach of the standard
of care. They claim that the court erred in (1) failing to grant
their motion for directed verdict at the close of the Andersons’
case in chief, (2) allowing questioning of Backer about the
standard of care of Babbe, and (3) failing to grant their motion
for directed verdict at the close of all evidence.
To be considered by an appellate court, an alleged error
must be both specifically assigned and specifically argued
in the brief of the party asserting the error.2 The doctors did
not specifically assign that the court erred in overruling their
motion for judgment notwithstanding the verdict; thus, we do
not address any argument concerning that motion.
IV. STANDARD OF REVIEW
[1] Decisions regarding motions for mistrial are directed
to the discretion of the trial court and will be upheld in the
absence of an abuse of discretion.3
[2] The giving or refusing to give a cautionary instruction
that the jury is not to allow sympathy or prejudice to control
or affect its finding is within the discretion of the trial court.4
[3] An appellate court reviews a denial of a motion for new
trial for an abuse of discretion.5
[4] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
2
Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 (2019).
3
Bank v. Mickels, 302 Neb. 1009, 926 N.W.2d 97 (2019).
4
See Buhrman v. Smollen, 164 Neb. 655, 83 N.W.2d 386 (1957).
5
See Bank v. Mickels, supra note 3.
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and to have the benefit of every inference which can reason-
ably be deduced from the evidence.6
V. ANALYSIS
1. Golden Rule Discussion in Voir Dire
(a) Additional Facts
During voir dire, the Andersons’ counsel informed the pro-
spective jurors that they “are to look at the evidence objec-
tively and weigh the evidence objectively.” Counsel advised
that “there’s no sympathy that’s to be allowed to enter into
your deliberations or your thought process.”
The Andersons’ counsel wished to speak with the venire
about physical health. He stated:
Now I just want to talk about how important your physi-
cal health is to you, your ability to walk, your ability to
climb stairs, your ability to do things of that nature, and
I’ll just go through each and every one of you and prob-
ably break here in a minute for — for the noon break.
At that point, counsel for the doctors objected. He asserted that
the Andersons’ counsel was improperly “trying to put the [pro-
spective] jurors in the position of a party.” The court overruled
the objection.
Several prospective jurors then spoke of the importance
of mobility. One said it “would be a hit for sure” if he were
unable to “[r]un around like a chicken with my head cut
off making people drunk.” Another prospective juror stated
that her health was very important and that she “would want
to be able to keep working, moving, and walking, being
mobile.” A third prospective juror explained how his life
would change if he were unable to work. A fourth discussed
that it “would change a lot about [her] lifestyle.” A fifth pro-
spective juror stated that he is “constantly walking around.”
A sixth stated that mobility is “very important, not just from
6
Smith v. Meyring Cattle Co., 302 Neb. 116, 921 N.W.2d 820 (2019).
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a quality-of-life aspect, but, yeah, being able to support your-
self and your family.” A seventh similarly stated that mobility
is very important.
Immediately after the seventh’s response, the court sug-
gested a break for lunch and excused the prospective jurors.
The record shows that at 11:55 a.m., in the presence of counsel
and the parties but outside the presence of the prospective jury,
the court addressed the objection made during voir dire. The
court stated:
[J]ust about five minutes ago or so, [the doctors’ coun-
sel] made an objection to [the Andersons’ counsel’s] last
inquiry of a general question of each, which turned into
a question of each of the jurors is how [the Andersons’
counsel] was handling it. We got about five or six of them
done before we broke for lunch, where the question was:
How important is your general health? Which then got to
a question of one of them: How important is your mobil-
ity? [The doctors’ counsel] objected. The Court made its
ruling and basically overruled that objection.
Now that the Court’s thought about it a little more . . . ,
the Court’s going to change that ruling, and I’m going
to sustain [the doctors’] objection and not allow that
question to be asked, when we return, of the remaining
jurors. Okay?
The court explained its initial belief that the prospective
jurors would merely confirm that their health is important.
But the court recognized that “the answers were starting to
get . . . towards how they would feel to . . . be in the shoes
of [Anderson], which we don’t allow to be argued at clos-
ing.” The court stated that “it’s probably best I don’t allow
it to even be discussed in a voir dire.” The doctors’ counsel
confirmed “that was my whole point when I made the objec-
tion.” He asserted that the Andersons’ counsel was “arguing
the case” and had put the prospective jurors in the place
of Anderson. The doctors moved for a mistrial, which the
court overruled.
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ANDERSON v. BABBE
Cite as 304 Neb. 186
The court stated that it would “keep an open mind” about
giving “a limiting instruction if [counsel] felt, at the end of this
matter . . . that needed to be discussed.” The doctors’ counsel
asked the court “to instruct the jury and to make a comment to
them at least” and to do so now rather than at the end of trial.
The following colloquy occurred:
THE COURT: . . . [Y]ou want me to tell them some-
thing when they return?
[Counsel for the doctors]: Yeah, I want to tell them,
you know, the questioning that they were asked, you
know, that has nothing to do with how they feel. In other
words, they can’t put themselves in the place of a party
to a lawsuit.
THE COURT: I understand.
[Counsel for the doctors]: And have that . . . cloud their
. . . decision on whether or not there’s any liability and, if
so, what the damages are, if there — if there are any dam-
ages. I just think that something has to be said . . . to the
jury. I don’t know that you could — you know, the — the
milk has been spilled. I don’t know if you can get it back
in the bottle or not, but —
THE COURT: Well, I’m not inclined to do that at this
time. That’s why I did bring it up, because I thought you
might ask for that, and I may be inclined to do it as we
get towards the end of this trial. I’m not so sure I see
where we’re in a worse position if I do it at the time of
jury instructions as opposed to doing it at 1:00 when they
return at voir dire. I don’t know what worsens during that
time is my point.
So if you want to approach it back up and write some-
thing up you may — you may read that would —
[Counsel for the doctors]: Well, I think I just kind of
did tell you what I thought.
THE COURT: Then I’m not going to do it at this time,
but I certainly will entertain that motion or that thought
later in the matter.
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ANDERSON v. BABBE
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(b) Discussion
The doctors assign three errors related to voir dire. They
argue that the court abused its discretion in overruling their
motion for mistrial, in failing to give a curative instruction, and
in overruling their motion for a new trial. Their arguments are
premised upon a claim that the Andersons’ counsel improperly
invoked the Golden Rule during voir dire. We find no merit in
any of the respects alleged.
[5,6] “A ‘golden rule’ argument tells the jur[ors] ‘to place
themselves in the plaintiff’s shoes and award the amount
they would ‘charge’ to undergo equivalent disability, pain and
suffering.’”7 Such an argument is improper because it asks the
jurors to place themselves or their loved ones in the plaintiff’s
position, effectively urging them to become advocates for the
plaintiff.8 Although an invitation to jurors to put themselves in
the place of a party is improper argument, it is not a ground
for a reversal unless the jurors were prejudicially affected by
the remark.9 Golden Rule cases typically involve remarks made
during closing arguments.10
[7] Golden Rule challenges have been directed occasionally
to remarks during voir dire. Parties may not use voir dire to
impanel a jury with a predetermined disposition or to indoc-
trinate jurors to react favorably to a party’s position when
presented with particular evidence.11 In one case, a prosecu-
tor asked prospective jurors questions such as whether they
thought it was “‘important to be able to feel safe and secure
7
Janice H. v. 696 North Robertson, LLC, 1 Cal. App. 5th 586, 603, 205 Cal.
Rptr. 3d 103, 119 (2016).
8
See id.
9
See Paro v. Farm & Ranch Fertilizer, 243 Neb. 390, 499 N.W.2d 535
(1993).
10
See, R. Collin Mangrum, I Believe, The Golden Rule, Send a Message,
and Other Improper Closing Arguments, 48 Creighton L. Rev. 521 (2015);
Annot., 70 A.L.R. 2d 935 (1960).
11
State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
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in [their] own home[s]’ and ‘to defend their child[ren] from
danger,’ and whether they had ever ‘been jealous’ or taken any
‘sort of violent action’ out of jealousy.”12 The appellate court
reasoned that the open-ended voir dire questions were not
improper Golden Rule questions. In another case, the plaintiffs’
lawyer asked prospective jurors what they thought would be
a fair amount of money for such a case and how they might
feel if they lost a child.13 The court stated that the Golden
Rule arguably did not apply because questions asked during
voir dire are not argument, and to the extent it did apply, the
defend­ants were not unfairly prejudiced.
We find persuasive a case from the District Court of Appeal
of Florida.14 There, a prospective juror was asked whether she
could conduct her family business without her spouse. The trial
court initially sustained an objection to the question but denied
a motion for mistrial. Later, the trial court granted a new trial,
finding that the question was a Golden Rule argument. The
appellate court disagreed. It observed that the question did not
ask the prospective juror how much the juror would want to
receive if placed in the plaintiffs’ position nor did it ask the
juror to identify with the plaintiffs’ personal circumstances.
The appellate court noted that at the time, the prospective
jurors did not know anything about the facts of the case other
than that the plaintiffs were suing because an accident killed
a family member. The court reasoned that the question “asked
what the juror’s own personal circumstances were, which is
the very reason for voir dire—to know whether something in
the juror’s personal experience is relevant to the issues to be
tried in the case.”15
12
Rasheed v. State, 237 So. 3d 822, 830 (Miss. App. 2017).
13
See Heimlicher v. Steele, 615 F. Supp. 2d 884 (N.D. Iowa 2009).
14
Goutis v. Express Transport, Inc., 699 So. 2d 757 (Fla. App. 1997),
disapproved on other grounds, Murphy v. International Robotic Systems,
766 So. 2d 1010 (Fla. 2000).
15
Id. at 761.
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Here, the prospective jurors were informed that this was a
medical malpractice action. But the venire was unaware of the
particular facts of the case. The Andersons’ counsel specifi-
cally told the prospective jurors: “[W]hat we’re not allowed to
do right now is tell you about the facts. We’re not supposed to
give you any information about the case itself.” The prospec-
tive jurors were not asked to place themselves in Anderson’s
situation or asked how much they would want to be awarded if
so placed. While the discussion during voir dire may have been
heading in an improper direction, it did not reach the point of
stating “put yourself in the plaintiff’s place” or asking the pro-
spective jurors to do so. We conclude the court did not abuse
its discretion in overruling the doctors’ motion for mistrial.
Nor did the court abuse its discretion in declining to give
a curative instruction. The court’s apprehension about making
the situation worse with a curative instruction during voir dire
was reasonable. The voir dire discussion was relatively unde-
veloped. At that point, a trial judge could reasonably conclude
that an admonishment or instruction would highlight the issue
by making a vague interpretation explicit.
The court left open the possibility of giving an instruction
“at the time of jury instructions.” There is no argument that
a specific curative admonishment or instruction was offered
and refused. And both the preliminary and final jury instruc-
tions given made clear that sympathy should not factor into
the jury’s decision. Prior to the introduction of evidence, the
jury was told, “Do not allow sympathy or prejudice to influ-
ence you.” Once the jury had heard all of the evidence, it was
instructed, “You must not allow sympathy or prejudice to influ-
ence your verdict.” Specifically with regard to damages, the
jury was instructed: “Remember, throughout your deliberations
you must not engage in any speculation, guess, or conjecture,
and you must not award any damages by way of punishment or
through sympathy.”
For the same reasons discussed above with respect to the
motion for mistrial and request for a curative instruction, we
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conclude that the court did not abuse its discretion in overrul-
ing the doctors’ motion for new trial.
2. Motion for Directed Verdict A fter
A ndersons’ Case in Chief
[8] The doctors argue that the district court erred in overrul-
ing their motion for directed verdict made after the Andersons’
case in chief, but they waived any error by offering evidence.
Over 100 years ago, this court declared that when a defendant’s
motion for directed verdict made at the close of the plaintiff’s
case was overruled and the defendant introduced evidence in
support of allegations contained in its answer, it waived any
right to insist that the court erred in overruling the motion.16
This rule enjoys continued vitality.17
The doctors assert that “deciding whether to go forward with
the trial puts defense counsel between the proverbial rock and
a hard place.”18 But the rule they urge would allow them to
“have [their] cake and eat it too.” We decline their invitation to
overrule this longstanding waiver rule.
The doctors also argue that case law indicates the first
motion is not waived, but, rather, can be incorporated into the
motion made at the close of all evidence. They misread the
case law. A Missouri court cogently explained the effect of
motions for directed verdict made at the close of the plaintiff’s
evidence and at the close of all evidence under its rule that
governs motions for directed verdict, which is substantially
similar to our Neb. Rev. Stat. § 25-1315.01 (Reissue 2016):
At the close of plaintiff’s evidence, Rule 72.01(a) provides
defendant with the opportunity to challenge whether plain-
tiff has made a submissible case. If no further evidence
is introduced, the case—both at trial and on appeal—is
16
See Bradstreet v. Grand Island Banking Co., 89 Neb. 590, 131 N.W. 956
(1911).
17
See Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926
N.W.2d 610 (2019).
18
Reply brief for appellants at 10.
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determined by the evidence on the record at that point.
Should the trial court overrule the motion, defendant then
has the choice of putting on evidence of his or her own.
If defendant introduces evidence, the state of the record at
the close of plaintiff’s case is waived and the case—both
at trial and on appeal—is determined in accordance with
all evidence admitted: plaintiff’s and defendant’s. Rule
72.01(b) allows defendant the opportunity to move for a
directed verdict at the close of all evidence.19
The state of the record at the close of the plaintiff’s case ceases
to be relevant (for purposes of a directed verdict) if the defend­
ant introduces evidence.
An Arkansas court considering a similar issue in a medical
malpractice action found a waiver.20 In that case, the appellee
argued that the assigned errors were immaterial, because the
trial court should have directed a verdict for him. The appel-
lee’s argument was premised on the plaintiff’s failure to prove
by expert testimony that the doctor failed to meet the degree
of skill ordinarily used by other doctors in the locality. But the
appellate court did not reach the argument, because rather than
standing on the motion for a directed verdict at the close of
the plaintiff’s proof, the appellee instead introduced testimony.
The appellate court determined that the appellee waived his
motion by not electing to stand on it.
Because the doctors in the instant case introduced evidence
after the court denied their motion for directed verdict at the
close of the Andersons’ case in chief, they have waived any
error in the ruling.
3. Questioning R egarding
Standard of Care
The doctors argue that the court erred in allowing question-
ing of Backer about whether Babbe met the standard of care.
19
Sanders v. Ahmed, 364 S.W.3d 195, 207 (Mo. 2012) (emphasis in original).
20
See Haney v. DeSandre, 286 Ark. 258, 692 S.W.2d 214 (1985).
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They contend that Backer was not identified as an expert wit-
ness as to compliance with the standard of care for anyone
other than herself.
In asking Backer questions about whether Babbe met the
standard of care, the Andersons’ counsel pointed to an inter-
rogatory answer submitted on the doctors’ behalf in which the
doctors designated their expert witnesses as themselves and a
third doctor. The answer stated that “they” would testify “they”
met the standard of care. Assuming without deciding that
the doctors’ answers to interrogatories are sufficiently in our
record, it cannot come as a surprise for a party opponent to be
called to testify.
The doctors direct our attention to Simon v. Drake.21 In that
case, we concluded that the trial court erred in permitting a
surgeon—the plaintiff’s treating physician—who had not been
designated as an expert to testify about standard of care issues
and in refusing to give a curative instruction to the jury. We
reasoned that “[c]ompared to the testimony of a hired expert, a
juror was likely to give great weight to [the surgeon’s] opinion
because he was [the plaintiff’s] treating physician and testify-
ing as an expert against his own patient.”22 But here, unlike in
Simon, Backer had been designated as an expert with regard to
standard of care issues. We see no error.
4. Motion for Directed Verdict
A fter Close of A ll Evidence
[9] The doctors also argue that their motion for directed
verdict made at the close of all evidence should have been
sustained. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can
draw but one conclusion from the evidence, that is, when an
issue should be decided as a matter of law.23
21
Simon v. Drake, 285 Neb. 784, 829 N.W.2d 686 (2013).
22
Id. at 794, 829 N.W.2d at 693.
23
Denali Real Estate v. Denali Custom Builders, supra note 17.
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[10] The doctors contend that the Andersons failed to
establish the applicable standard of care, that their experts
were familiar with the applicable standard of care, and that a
breach of the applicable standard of care occurred. To estab-
lish the customary standard of care in a particular case, expert
testimony by a qualified medical professional is normally
required.24 Often, such testimony is premised on the expert’s
personal knowledge of, and familiarity with, the customary
practice among medical professionals in the same or similar
locality under like circumstances.25
The doctors’ argument is based on their belief that the
Andersons’ experts failed to state that they were familiar with
the standard of care applicable to physicians practicing family
medicine in Omaha in November and December 2012 treat-
ing a patient such as Anderson. In other words, they ask us to
consider only the expert testimony presented by the Andersons
during their case in chief.
[11,12] But on a motion made at the close of all evidence,
our review is not limited in that way. “The defendant, by
introducing evidence after his or her motion for a directed
verdict is denied, takes the chance that his or her evidence
will aid the plaintiff’s case.”26 “The plaintiff has a right to
have the submission of his or her case determined from all of
the evidence regardless of who introduces it.”27 The doctors’
evidence clearly established a violation of the standard of care.
Accordingly, the court properly denied the doctors’ motion for
directed verdict at the close of all evidence.
VI. CONCLUSION
We conclude that the voir dire discussion did not constitute
a Golden Rule argument and that the court did not abuse its
24
Hemsley v. Langdon, 299 Neb. 464, 909 N.W.2d 59 (2018).
25
Id.
26
89 C.J.S. Trial § 1353 at 770-71 (2012).
27
Id. at 771.
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discretion in denying the doctors’ request for a mistrial, for
an admonishment or curative instruction during voir dire, or
for a new trial. Because the doctors presented evidence fol-
lowing the denial of their motion for directed verdict at the
close of the Andersons’ case in chief, they waived any error
in the denial. And because the evidence—including the cross-
examination of Backer—established a breach of the standard
of care, the court did not err in denying the motion for directed
verdict at the close of all evidence. We affirm the judgment of
the district court.
A ffirmed.