Jonas v. Willman

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/28/2019 09:07 AM CDT
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JONAS v. WILLMAN
Cite as 27 Neb. Ct. App. 251
Grant Jonas, appellant, v. Brent Willman, M.D., and
Doctors of Children - Lincoln, P.C., appellees.
___ N.W.2d ___
Filed May 21, 2019. No. A-17-1016.
1. Jury Instructions. Whether the jury instructions given by a trial court
are correct is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
3. 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.
4. Trial: Courts: Juries: Appeal and Error. A trial court’s response to a
question posed by the jury is reviewed for an abuse of discretion.
5. Motions for New Trial: Appeal and Error. An appellate court reviews
a denial of a motion for new trial for an abuse of discretion.
6. Negligence: Trial. Generally, it is error to submit a general allegation of
negligence to the jury.
7. Pretrial Procedure: Parties. A pretrial order is binding upon the
parties.
8. Pretrial Procedure: Evidence. In relation to evidence, the pretrial
conference is designed for and primarily used to restrict evidence to the
issues formulated, secure admissions or stipulations, and avoid unduly
cumulative evidence and the necessity of proving foundation in regard
to clearly competent evidence.
9. Jury Instructions: Pleadings: Evidence. A litigant is entitled to have
the jury instructed upon only those theories of the case which are
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presented by the pleadings and which are supported by competent
evidence.
10. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s failure to give a requested jury instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s failure to
give the requested instruction.
11. Malpractice: Physicians and Surgeons: Proximate Cause: Damages.
In the medical malpractice context, the element of proximate causation
requires proof that the physician’s deviation from the standard of care
caused or contributed to the injury or damage to the plaintiff.
12. Physician and Patient: Negligence. Nebraska does not recognize the
loss-of-chance doctrine.
13. Trial: Evidence: Juries. Before evidence is submitted to a jury, there
is a preliminary question for the court to decide, when properly raised,
not whether there is literally no evidence, but whether there is any upon
which a jury can properly proceed to find a verdict for the party produc-
ing it and upon whom the burden is imposed.
14. Malpractice: Physicians and Surgeons: Expert Witnesses: Words
and Phrases. Medical expert testimony regarding causation based upon
possibility or speculation is insufficient; it must be stated as being at
least “probable,” in other words, more likely than not.
15. Trial: Evidence: Proof. The burden of proof is not sustained by evi-
dence from which a jury can arrive at its conclusions only by guess,
speculation, or conjecture.
16. Trial: Juries. The trial judge is in the best position to sense whether
the jury is able to proceed with its deliberations and has considerable
discretion in determining how to respond to communications indicating
that the jury is experiencing confusion.
17. Rules of the Supreme Court: Appeal and Error. Under Neb. Ct. R.
App. P. § 2-109(D)(4) (rev. 2014), a party filing a cross-appeal must set
forth a separate division of the brief prepared in the same manner and
under the same rules as the brief of appellant.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Diana J. Vogt, of Sherrets, Bruno & Vogt, L.L.C., and
Patrick J. Cullan and Joseph P. Cullan, of Cullan & Cullan,
L.L.C., for appellant.
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Patrick G. Vipond, William R. Settles, and John M.Walker,
of Lamson, Dugan & Murray, L.L.P., for appellees.
R iedmann, Bishop, and A rterburn, Judges.
R iedmann, Judge.
I. INTRODUCTION
Grant Jonas brought a medical malpractice action alleg-
ing that his pediatrician failed to diagnose and treat him for
congenital bilateral undescended testicles. Following a jury
verdict in favor of the defendants, Jonas appeals, arguing
that the district court erred in instructing the jury, answering
questions from the jury, and denying his motion for a new
trial. The defendants attempt to cross-appeal from the district
court’s denial of their motion for sanctions. For the reasons
set out below, we affirm the order of the district court in
all respects.
II. BACKGROUND
Jonas brought a medical malpractice suit against Brent
Willman, M.D., and his professional practice, Doctors of
Children - Lincoln, P.C., in 2013. Jonas alleged that he
was born with congenital bilateral cryptorchidism and that
Willman was negligent in not diagnosing, treating, or refer-
ring him to a specialist for his condition. Congenital bilateral
cryptorchidism was defined at trial as testicles that had not
descended at birth. Thus, Jonas claimed that he was born with
testicles that did not descend and that Willman did not recog-
nize and treat his condition.
The defendants countered Jonas’ allegations by attempting
to establish that Jonas had descended testicles at birth, but his
testicles later ascended out of his scrotum. One of their experts
explained that “[an] ascended testicle is a testicle that was
descended at birth, and then at some point it ascended [and]
can no longer [be brought] into the scrotum.” The defend­ants
argued that Jonas did not suffer any injuries as a result of his
ascended testicles.
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1. Jonas’ Medical History
Jonas was born in July 1997. The day after he was born,
he was examined by Willman, who found Jonas’ testicles to
be descended and in the scrotum. Willman again examined
Jonas when he was 4 days old and noted that his testicles
were descended. Before leaving the hospital, Jonas was also
examined by Dr. Brad Brabec, who found Jonas’ testicles to
be normal.
Jonas’ 2-month checkup was performed by Willman, and his
testicles appeared normal and descended. Dr. Barton Bernstein
performed Jonas’ 4-month checkup and noted on Jonas’ medi-
cal chart that he was a normal, healthy child. Jonas then saw
Willman regularly for checkups, and on each visit, Willman
found Jonas’ testicles to be normal and descended. Additional
medical professionals examined Jonas while he was a young
child, including Kathy Carter, a nurse practitioner, who exam-
ined him when he was 2 years old, and Dr. Susan Johnson,
who examined him when he was 6 years old, and each found
his testicles to be descended and in his scrotum.
In 2003, Jonas was examined by Erin Hoffman, a new
physician assistant who worked for Willman. While examin-
ing Jonas, Hoffman had difficulty locating his testicles due to
extra fat tissue in his genital region. Being inexperienced in
these examinations, Hoffman requested that Willman assist
her, which he did, and Hoffman was able to “visualize” Jonas’
testicles. Between 2003 and 2008, Jonas was seen regularly
by Willman and Hoffman, and there were no concerns that his
testicles had not descended.
In 2008, Hoffman became concerned that Jonas’ penis was
abnormally small and that his genitalia were not develop-
ing at the same rate as the rest of his body. However, after
being informed of Hoffman’s concerns, Willman examined
Jonas and found Jonas’ testicles to be descended. Willman ran
tests to determine whether Jonas had started puberty, and the
tests indicated that he had low testosterone and had not yet
started puberty. In 2009, Jonas’ mother contacted Willman with
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concerns about Jonas’ penis size and testicles. Willman referred
Jonas to Dr. Jean-Claude Desmangles, an endocrinologist, to
evaluate him for delayed puberty.
In March 2009, Desmangles performed a physical examina-
tion on Jonas and could not locate his testicles. Desmangles
then ordered an ultrasound examination of Jonas, which indi-
cated that his testicles were not in his scrotum. Jonas was
referred to Dr. Euclid DeSouza, a urologist, who diagnosed him
with bilateral undescended testicles at the age of 11. DeSouza
performed an orchiopexy, which is a surgery to bring testicles
into the scrotum. Prior to his surgery, Jonas was examined by
Hoffman for a physical to ensure he was healthy enough for the
procedure. At the same visit, Hoffman performed a 12-year-old
checkup on Jonas and indicated on his medical chart that his
testicles were normal at that time.
After surgery, Jonas was informed that he was at a higher
risk of testicular cancer and likely would have fertility issues
due to his undescended testicles. He subsequently underwent
testing where it was determined that his sperm count rendered
him infertile.
2. Pretrial Procedure
In 2013, Jonas’ parents, individually and as next friends
of Jonas, filed a complaint in the district court for Lancaster
County against Willman; Complete Children’s Health, P.C.;
and Doctors of Children - Lincoln, alleging that the defendants
were negligent in failing to identify Jonas’ bilateral unde-
scended testicles and in failing to timely refer him to specialty
care for this condition. Complete Children’s Health was subse-
quently dismissed from the case.
After multiple continuances and lengthy discovery, a pre-
trial conference was held in June 2015. Prior to the pretrial
conference, the parties were ordered to submit a pretrial con-
ference memorandum. Jonas and his parents submitted their
memorandum on June 15, which stated, in relevant part: “On
July . . . 1997 Grant Jonas was born. Plaintiffs contend [Jonas]
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was born with a medical condition known as a congenital
bilateral cryptorchidism.”
On September 2, 2015, Jonas’ parents were dismissed after
the defendants filed a motion for partial summary judgment,
arguing that the parents’ claims were barred by the appli-
cable statute of limitations, and the parents agreed. The case
proceeded with Jonas, who was no longer a minor, as the
sole plaintiff.
Trial on Jonas’ claim was held in February 2017.
3. Trial
During Jonas’ opening statement, his counsel repeatedly
stated that Jonas was born with undescended testicles, which
caused his injuries. Specifically, counsel stated:
He was diagnosed, at age 11, with undescended testicles
at birth. Let me say that again. His diagnosis from age
11 until today, his diagnosis is undescended testicles.
Words matter. That matters, because that diagnosis is
going to try to be changed here in court, but that is his
current diagnosis. And if his current diagnosis is true
and accurate, then our case is made for us, because if
his testicles were undescended from birth, it should have
been caught.
Jonas’ counsel later stated, “A diagnosis, not some ascend-
ing testicles, some vanishing testicle theory, his diagnosis at
that stage is undescended testicles. . . . His diagnosis, unde-
scended testicles. That means from birth, that’s what that term
means.” His counsel continued to emphasize that Jonas had
undescended testicles from birth by explaining, “this diag-
nosis, undescended testes, means from birth, they’ve never
been in the scrotum.” Finally, while discussing Jonas’ alleged
injuries, his counsel stated, “And the only cause of testicular
dysfunction that we’re aware of in [Jonas] is the fact that these
things were never descended.”
Jonas’ first witness was DeSouza, the urologist who per-
formed Jonas’ surgery to bring his testicles into the scrotum.
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DeSouza testified that Jonas’ right testicle was located in his
abdomen and that his left testicle was located in the inguinal
canal, above the scrotum. DeSouza opined that it was unlikely
that either testicle was ever in the scrotum because the guber-
naculum, the structure that brings a male’s testicles to his
scrotum, did not lead to Jonas’ scrotum. During DeSouza’s
testimony, Jonas’ counsel continued to attempt to demonstrate
that Jonas was born with bilateral undescended testicles,
even attempting to impeach DeSouza when he opined that
Jonas’ left testicle may or may not have been descended at
one point. DeSouza also indicated that Jonas’ testicles were
atrophic, or small, because they were located in his groin and
inguinal canal, not the scrotum.
On cross-examination, DeSouza testified that he did not
observe a hernia sac while he performed Jonas’ surgery and
that a hernia sac is usually present when there are undescended
testicles. DeSouza also acknowledged that in his operative
report, written directly after the surgery, he stated that Jonas’
testicles were “anatomically normal.”
Jonas next called Dr. Kevin Ferentz, a family physician,
as an expert witness. Ferentz testified that Jonas was born
with undescended testicles that were not diagnosed. Ferentz
explained that there are increased risks of infertility and
testicular cancer in a male who has undescended testicles.
However, if undescended testicles are diagnosed and cor-
rected at approximately 1 year of age, the male should not
have any increased health risks. Ferentz stated that his opin-
ion Jonas had undescended testicles since birth was based on
Desmangles’ medical reports and DeSouza’s findings during
surgery. It was Ferentz’ opinion that Willman breached his
duty of care because Willman indicated that he felt Jonas’
testicles, but, based on DeSouza’s findings during surgery, it
was not possible that Jonas’ testicles were ever in the scrotum.
Finally, Ferentz opined that it was not possible for Jonas’ tes-
ticles to descend, and then r­eascend into his body, because his
gubernaculum did not reach his scrotum.
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Jonas also called Dr. Dudley Danoff, a urologic surgeon,
as an expert witness. Danoff concurred with Ferentz’ opin-
ion that Jonas was born with undescended testicles and that
he was not diagnosed with bilateral undescended testicles
until he was 11 years old. Danoff also opined that it was
impossible for Jonas’ testicles to have ever been in his scro-
tum. After reading the test results from Jonas’ fertility test,
Danoff testified that Jonas was infertile. Danoff further testi-
fied that the injuries Jonas suffered were proximately caused
by the delayed diagnosis of his undescended testicles. Danoff
indicated he did not believe the concept of ascending tes-
ticles was a “viable concept.” Danoff further stated that not
only did he not believe the concept of descending testi-
cles that then ascend, but he could not “conceive” how that
would happen.
Following Jonas’ case in chief, the defendants moved for a
directed verdict, which was denied by the court. The defend­
ants then presented their case, attempting to demonstrate that
Jonas had descended testicles at birth that later ascended.
They elicited testimony from Bernstein, Brabec, Johnson,
Carter, and Hoffman who all testified that Jonas’ testicles were
descended when they examined him. Willman also testified
Jonas’ testicles were descended when he was born. He fur-
ther stated that it was virtually impossible for all the medical
professionals who examined Jonas to miss his undescended
testicles. Willman conceded that he examined Jonas in 2008
prior to referring him to Desmangles and that it was possible
he did not feel Jonas’ testicles at that visit.
The defendants also called two expert witnesses to testify
on their behalf. Dr. John Weiner, a pediatric urologist, testi-
fied that it was possible for a male to have ascending tes-
ticles, meaning testicles that retreat into the body after being
descended at birth. Weiner further testified that “the risk of
infertility and cancer are well known for undescended tes-
ticles from birth”; however, he stated that there is no medical
literature stating that there is an increased risk of infertility
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or cancer in ascended testicles. He stated that although the
exact cause of increased risk of infertility and cancer for unde-
scended testicles is unknown, most people believe that there is
something “wrong” with the testicle from the very beginning
and that the testicle was not destined to be a “good testicle[].”
Weiner opined that Jonas had no more risk of infertility or tes-
ticular cancer “than any other young boy” because he did not
have undescended testicles. Weiner concluded that Jonas did
not suffer an increased risk of cancer or infertility due to his
ascended testicles.
Dr. Timothy Bukowski, another pediatric urologist, also
testified that at birth, Jonas had descended testicles, and that
as time went on, they ascended. He based this opinion in part
upon the fact that there was no hernia sac found during surgery.
According to Bukowski, with a “true undescended testicle,”
a hernia sac exists. Similar to Weiner, Bukowski opined that
Jonas did not have an increased risk of infertility or can-
cer, explaining:
[A] boy whose testicles are descended should function
normally throughout puberty, throughout adulthood, pro-
vide normal fertility, normal pubertal growth, have a
minimal risk of testicular cancer development. And as
opposed to a boy whose testicles were not descended at
birth, they have a higher risk of testis tumor development
and a little bit higher rate of fertility problems.
Bukowski attributed the increased risk of infertility and cancer
with undescended testicles to a defect in the testicle itself.
Prior to the end of the trial, the district court held a
jury instruction conference. At the conference, Jonas’ counsel
objected to instruction No. 5, which contained the statement of
the case. Instruction No. 5, as given to the jury, states:
I. PLAINTIFFS’ CLAIMS
A. ISSUES
The Plaintiff, Grant Jonas, claims that Defendant[s]
Brent Willman, M.D. and Doctors of Children-Lincoln,
P.C. were professionally negligent in the following ways:
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1. In failing to timely identify Grant Jonas’ unde-
scended testicles;
2. In failing to timely manage Grant Jonas’ unde-
scended testicles;
3. In failing to arrange a proper referral for Grant
Jonas’ undescended testicles condition.
Defendants deny all allegation of negligence; deny that
the Plaintiff’s injuries were proximately caused by the
actions of Brent Willman, M.D. and Doctors of Children-
Lincoln, P.C. and defendants employees; and deny the
nature and extent of the Plaintiff’s damages.
Jonas objected, believing that the evidence was broader than
the court’s limitation of “undescended testes.” Specifically,
Jonas’ counsel argued that
at any time testicles were not in the scrotum and a find-
ing of normal was done, that, that was negligence. . . .
And so it’s the limitation in the term undescended testes
in those three items, which we believe makes it prejudi-
cial and confuses the jury, and is not in conformance with
the evidence proffered at trial.
In conformity with an amended pretrial order, Jonas had
submitted a proposed jury instruction which stated:
I. Plaintiffs’ Claims
A. ISSUES
The Plaintiff, Grant Jonas, claims that Defendants
Brent Willman, M.D. and Doctors of Children-Lincoln,
P.C. were professionally negligent in the following ways:
1. In failing to timely identify Grant Jonas’ unde-
scended testicles[;]
2. In failing to timely manage Grant Jonas’ unde-
scended testicles[;]
3. In providing false assurance to the family of Grant
Jonas regarding his testicular descent; and
4. In failing to arrange a proper referral for Grant
Jonas’ undescended testicle condition.
5. Otherwise to conform to the testimony at trial.
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The district court overruled Jonas’ objection, stating that
instruction No. 5 was taken from Jonas’ theory of the case and
that there was not any expert testimony that associated Jonas’
injuries with ascending testicles.
After the case was submitted to the jury, it posed two ques-
tions. First, the jury asked, “‘Does the plaintiff’s claim of
undescended testicles mean both testicles, e.g., bilateral?’”
Second, the jury asked, “‘Does “undescended” mean from
birth?[’”] After consulting with counsel for both parties, the
court answered “yes” to each question. The jury subsequently
returned a verdict in favor of the defendants.
4. Posttrial Proceedings
Following trial, Jonas moved for a new trial and the defend­
ants sought sanctions against Jonas under Neb. Rev. Stat.
§ 25-824(4) (Reissue 2016). Jonas argued two grounds for a
new trial. First, he asserted that Weiner testified regarding the
absence of a hernia sac, which was an opinion that was not dis-
closed prior to trial. Second, he alleged that the use of the plu-
ral form of “testicle” in instruction No. 5 was erroneous. Jonas
further argued that the evidence presented at trial would have
allowed the jury to find in his favor if they had determined
that only one testicle was undescended. Jonas also alleged that
the court’s error in issuing instruction No. 5 was compounded
by the court’s answer of “yes” to the jury’s questions.
The district court denied Jonas’ motion for a new trial.
It found that Jonas failed to establish unfair surprise with
Weiner’s testimony. The court further stated that Jonas’ expert
witnesses did not present sufficient testimony to allow the
court to submit his requested instruction, allowing the jury to
find for him even if they found that only one testicle was unde-
scended. The court indicated that Jonas was attempting to use
expert testimony regarding bilateral undescended testicles to
prove causation and damages resulting from one undescended
testicle. Finally, the court stated that Jonas’ claim that he was
at an increased risk of cancer due to a single testicle being
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undescended failed because it was based on a lost chance of
survival, which the Nebraska Supreme Court had recently pro-
hibited. See Cohan v. Medical Imaging Consultants, 297 Neb.
111, 900 N.W.2d 732 (2017), modified on denial of rehearing
297 Neb. 568, 902 N.W.2d 98. The district court also denied
the defendants’ motion for sanctions.
Jonas appeals, and the defendants attempt to cross-appeal.
III. ASSIGNMENTS OF ERROR
Jonas assigns, restated and renumbered, that the district
court erred in (1) refusing to give Jonas’ proposed statement-
of-the-case jury instruction; (2) entering a directed verdict
against Jonas on damages arising from Willman’s failure to
diagnose, treat, or refer for ascended testicles; (3) answering
jury questions which precluded the jury from acting as fact
finder; (4) answering jury questions that indicated the court’s
opinion of the evidence and credibility of the witnesses; (5)
using a “general dictionary” and conducting its own research
in answering the jury questions; and (6) denying Jonas’ motion
for a new trial.
IV. STANDARD OF REVIEW
[1,2] Whether the jury instructions given by a trial court are
correct is a question of law. Armstrong v. Clarkson College,
297 Neb. 595, 901 N.W.2d 1 (2017). When reviewing ques-
tions of law, an appellate court has an obligation to resolve
the questions independently of the conclusion reached by the
trial court. Id.
[3] 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
and to have the benefit of every inference which can reason-
ably be deduced from the evidence. Lesiak v. Central Valley
Ag Co-op, 283 Neb. 103, 808 N.W.2d 67 (2012).
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[4] A trial court’s response to a question posed by the jury
is reviewed for an abuse of discretion. See In re Petition
of Omaha Pub. Power Dist., 268 Neb. 43, 680 N.W.2d 128
(2004). See, also, In re Estate of Clinger, 292 Neb. 237, 872
N.W.2d 37 (2015).
[5] An appellate court reviews a denial of a motion for new
trial for an abuse of discretion. See Hemsley v. Langdon, 299
Neb. 464, 909 N.W.2d 59 (2018). A judicial abuse of discre-
tion exists when the reasons or rulings of a trial judge are
clearly untenable, unfairly depriving a litigant of a substantial
right and denying just results in matters submitted for disposi-
tion. Id.
V. ANALYSIS
1. Jury Instruction No. 5
Jonas asserts that the district court erred in refusing to give
the jury his proposed jury instruction on acts of negligence
shown by the evidence and supported by the record. Relatedly,
Jonas also argues that the district court erred by entering
a “directed verdict” against him on damages arising from
Willman’s failure to diagnose, treat, or refer him for ascended
testicles. Because our analysis of these assigned errors impacts
Jonas’ remaining errors, we address these errors first. We
determine that the district court did not err in refusing to give
Jonas’ proposed jury instruction and that the court did not err
in directing a verdict against Jonas on his claim of damages
resulting from Willman’s alleged failure to diagnose, treat, or
refer Jonas for ascended testicles.
During the jury instruction conference, Jonas’ counsel
objected to instruction No. 5, which reads in pertinent part:
I. PLAINTIFFS’ CLAIMS
A. ISSUES
The Plaintiff, Grant Jonas, claims that Defendant[s]
Brent Willman, M.D. and Doctors of Children-Lincoln,
P.C. were professionally negligent in the following ways:
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1. In failing to timely identify Grant Jonas’ unde-
scended testicles;
2. In failing to timely manage Grant Jonas’ unde-
scended testicles;
3. In failing to arrange a proper referral for Grant
Jonas’ undescended testicles condition.
Jonas argued that the evidence presented during trial was
broader than the specific acts contained in instruction No. 5
and that the instruction should have included a claim of gen-
eral negligence against the defendants and should not have
been limited to “undescended testes.” The district court over-
ruled the objection, stating that Jonas’ expert witnesses testi-
fied Jonas’ injuries and damages were based on undescended
testicles from birth and that that had been Jonas’ theory of the
case since the beginning.
In his appeal, Jonas argues that the court erred in giv-
ing instruction No. 5, because the evidence presented at trial
entitled Jonas to recover even if the jury found his testicles
were descended at birth and then ascended, or if only one tes-
ticle was undescended. Jonas’ argument is flawed for numer-
ous reasons.
[6] First, Jonas’ proposed instruction contained a catch-all
allegation of negligence. Specifically, he sought to include
a statement that defendants were negligent: “Otherwise to
conform to the testimony at trial.” Such an instruction is
improper. See Graham v. Simplex Motor Rebuilders, Inc., 189
Neb. 507, 203 N.W.2d 494 (1973) (stating it is error to submit
general allegation of negligence to jury).
As to Jonas’ argument that the court should not have lim-
ited the instruction to bilateral testicles or to undescended
testicles, Jonas is attempting to expand the case beyond the
allegations laid out in his complaint and pretrial memoran-
dum. In his complaint, he specifically pled that the defend­
ants were negligent in failing to identify Jonas’ “bilateral
undescended testicles.” In his pretrial memorandum, Jonas
again identified “congenital bilateral cryptorchidism,” which
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his experts defined as testicles that had not descended from
birth. And pursuant to the amended pretrial conference order,
he submitted a jury instruction setting forth the specific act of
negligence in “failing to timely identify Grant Jonas’ unde-
scended testicles.”
[7,8] A pretrial order is binding upon the parties. Hall v.
County of Lancaster, 287 Neb. 969, 846 N.W.2d 107 (2014),
overruled on other grounds, Davis v. State, 297 Neb. 955, 902
N.W.2d 165 (2017). In relation to evidence, the pretrial confer-
ence is designed for and primarily used to restrict evidence to
the issues formulated, secure admissions or stipulations, and
avoid unduly cumulative evidence and the necessity of prov-
ing foundation in regard to clearly competent evidence. See
Cockrell v. Garton, 244 Neb. 359, 507 N.W.2d 38 (1993). The
Supreme Court has affirmed the limiting of the issues at trial
to those specified in the pretrial order and limiting the admis-
sion of evidence to the issues thus established. See, Hall v.
County of Lancaster, supra; Cockrell v. Garton, supra.
Here, a pretrial conference was held by the district court in
June 2015. The order specifically stated: “[T]his Order shall
control the subsequent course of this action. A copy of each
party’s Pretrial Conference Memorandum shall be attached to
and filed with this Order. Such Memoranda shall be deemed
incorporated in this Order . . . .” In his pretrial conference
memorandum, Jonas stated: “On July . . . 1997 Grant Jonas
was born. Plaintiffs contend [Jonas] was born with a medical
condition known as congenital bilateral cryptorchidism. . . .
Plaintiffs contend that Defendant Dr. Willman failed to rec-
ognize[] and failed to diagnose [Jonas’] congenital bilateral
cryptorchidism for over 11 years.” Thus, according to Jonas’
own pretrial memorandum, his claim was that he had congeni-
tal bilateral cryptorchidism, defined as undescended testicles
from the time of birth. Therefore, Jonas could not change his
theory of the case during the jury instruction conference to
allow him relief for something other than undescended bilat-
eral testicles from birth.
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The Supreme Court has either affirmed a trial court’s refusal
to allow a plaintiff to modify his or her theory of the case to
encompass alleged negligence, beyond what was laid out in the
complaint, or reversed a trial court’s decision to instruct the
jury on issues that could mislead them. In Hunt v. Methodist
Hosp., 240 Neb. 838, 485 N.W.2d 737 (1992), the Supreme
Court affirmed the trial court’s refusal to give the plaintiff’s
requested instruction which would have shifted liability to a
separate physician under the doctrine of respondeat superior,
when the plaintiff’s complaint was predicated on specific acts
of negligence of another named physician.
In contrast, in Long v. Hacker, 246 Neb. 547, 520 N.W.2d
195 (1994), the Supreme Court determined that the trial court
erred in instructing the jury regarding alternate methods of
localization for a spinal surgery because this was not at issue
in the case. To the extent that it was raised, it was raised by
the defendant. The Supreme Court found that the instruction
could mislead the jury about the issues in the case, and thus, it
reversed the judgment and remanded the cause for a new trial.
In the present case, Jonas requested that the court give
an instruction which would hold the defendants liable for a
greater swath of negligence than that on which Jonas predi-
cated his case. Jonas’ theory of the case from the time he
filed his complaint was that he was born with bilateral unde-
scended testicles and that Willman failed to diagnose and
treat his condition for over 11 years. This theory remained
the same throughout the pretrial process, throughout opening
statements, and throughout examination of the witnesses. The
defendants based their defense on Jonas’ theory and attempted
to show that Jonas was born with descended testicles that later
ascended. Jonas’ requested jury instruction would have allowed
him to recover even if the jury found that he had only one
undescended testicle or if they had ascended; yet, as discussed
below, no evidence supported a finding that either of these
resulted in injury to Jonas. The district court was correct to
refuse the proposed instruction.
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[9,10] Additionally, the evidence produced at trial did not
warrant Jonas’ requested instruction. A litigant is entitled to
have the jury instructed upon only those theories of the case
which are presented by the pleadings and which are sup-
ported by competent evidence. First Nat. Bank North Platte v.
Cardenas, 299 Neb. 497, 909 N.W.2d 79 (2018). To establish
reversible error from a court’s failure to give a requested jury
instruction, an appellant has the burden to show that (1) the
tendered instruction is a correct statement of the law, (2) the
tendered instruction was warranted by the evidence, and (3)
the appellant was prejudiced by the court’s failure to give the
requested instruction. Id. If the instructions given, which are
taken as a whole, correctly state the law, are not misleading,
and adequately cover the issues submissible to a jury, there
is no prejudicial error concerning the instructions and neces-
sitating a reversal. Id.
[11,12] In the medical malpractice context, the element
of proximate causation requires proof that the physician’s
deviation from the standard of care caused or contributed to
the injury or damage to the plaintiff. Thone v. Regional West
Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 (2008). Expert tes-
timony is almost always required to prove proximate cause.
Id. Additionally, Nebraska does not recognize the loss-of-
chance doctrine. Cohan v. Medical Imaging Consultants, 297
Neb. 111, 900 N.W.2d 732 (2017), modified on denial of
rehearing 297 Neb. 568, 902 N.W.2d 98.
Jonas’ proposed instruction sought to allow him to recover
damages if the jury found that his testicles were descended
at birth, but later ascended, or if only one testicle was unde-
scended at birth. The injuries and damages that Jonas alleged
he suffered included infertility, an increased risk of testicular
cancer, and psychological distress. However, Jonas’ expert
witnesses testified that he suffered his injuries because of
bilateral undescended testicles from birth. They explicitly
disagreed with the theory of ascending testicles presented by
the defendants, and Jonas’ experts did not testify that Jonas
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would have the same damages if only one testicle was unde-
scended. Moreover, Jonas’ experts were not in a position to
opine on damages caused by ascending testicles, because both
experts stated that it was impossible that Jonas had ascending
testicles. Danoff went on to state that the concept of ascending
testicles was not a “viable concept.” Consequently, Jonas did
not establish proximate cause between his alleged injuries and
the defendants’ failure to diagnose and treat him for a single
undescended testicle or ascending testicles.
Additionally, and as noted by the district court in its order
denying Jonas’ motion for a new trial, Jonas’ alleged injury
of an increased risk of testicular cancer is not a recognized
injury under Nebraska law. See Cohan v. Medical Imaging
Consultants, supra.
The district court did not err by refusing to give Jonas’
requested jury instruction because such an instruction was
incompatible with Jonas’ theory of the case contained in his
pretrial memorandum, was contrary to established law in
Nebraska, and was not warranted by the evidence.
2. Directed Verdict
In its response to Jonas’ objection to instruction No. 5
at the jury instruction conference, the district court stated:
“Therefore, I guess, in essence, I’m directing a verdict on
your request, or your claim, that the ascended testicle resulted
in some injury to your client, because you have offered no
evidence that an ascended testicle causes infertility or an
increased risk of cancer.” In its denial of Jonas’ motion for a
new trial, the court again stated that it was directing a verdict
against Jonas’ claim for relief on his claim that he suffered
damages even if he had only a single undescended testicle or
ascending testicles. In his appeal, Jonas argues that there was
sufficient evidence presented to survive a directed verdict.
We disagree.
[13-15] Before evidence is submitted to a jury, there is a
preliminary question for the court to decide, when properly
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raised, not whether there is literally no evidence, but whether
there is any upon which a jury can properly proceed to find
a verdict for the party producing it and upon whom the bur-
den is imposed. Doe v. Zedek, 255 Neb. 963, 587 N.W.2d
885 (1999). A directed verdict is proper only when reason-
able minds can draw but one conclusion from the evidence.
Scheele v. Rains, 292 Neb. 974, 874 N.W.2d 867 (2016).
Medical expert testimony regarding causation based upon
possibility or speculation is insufficient; it must be stated as
being at least “probable,” in other words, more likely than not.
Doe v. Zedek, supra. The burden of proof is not sustained by
evidence from which a jury can arrive at its conclusions only
by guess, speculation, or conjecture. See id.
As iterated above, and as stated by the district court in its
denial of Jonas’ motion for a new trial, no expert testimony
was presented by Jonas which connected his alleged injuries
to only a single undescended testicle or ascending testicles.
Jonas’ experts testified that he suffered from congenital bilat-
eral cryptorchidism, which condition caused him to be infertile
and have an increased risk of cancer. Notably, both Ferentz
and Danoff testified that it was not physically possible for
Jonas’ right testicle to have ever descended, because his guber-
naculum, the structure which brings a male’s testicles into
his scrotum, did not reach his scrotum. Further, both experts
testified that it was not possible for the left testicle to have
descended because it was “heavily scarred” and adhered to the
structures of Jonas’ inguinal canal, the area directly above a
male’s scrotum. Therefore, Jonas’ entire theory of the case was
that his testicles could not have descended into his scrotum
and were undescended from birth.
Additionally, Ferentz testified that it was not possible for
Jonas to have ascending testicles and Danoff indicated that
the theory of ascending testicles was not a “viable concept”;
therefore, neither expert was in a position to offer opinions
on any damages that Jonas may have suffered even if he had
ascending testicles. Although Jonas argues on appeal that
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both Ferentz and Danoff testified that Jonas could have suf-
fered injuries even if his testicles had descended at birth and
then later ascended, we disagree that the experts’ testimony
supports this conclusion.
Jonas argues that Ferentz’ testimony that “[a]fter a year, if
the testicle is still too warm, if it’s still inside the body, it’s
going to lead to problems down the road,” supports a finding
that even ascended testicles can result in an increased risk of
infertility or of cancer. However, this statement came after
Ferentz testified, “So generally speaking, if a testicle doesn’t
descend within about a year of child — after childbirth, then
the problems will seem — will develop, or can develop, or
are more likely to develop.” Thus, Ferentz was not testifying
that a testicle could be damaged any time it was not in the
scrotum; rather, he was specifically testifying that a testicle
could become damaged if it did not descend at childbirth and
was not corrected within a year of childbirth.
We recognize that Danoff testified that “if the testicle is
exposed to body temperature for a long period of time, i.e.
being undescended, it will result in a severely damaged tes-
ticle.” However, Danoff’s statement again directly followed a
statement indicating that injuries associated from undescended
testicles occur when the testicles are not descended at birth,
not any time in a male’s life. Danoff stated, “Well, if the tes-
ticles remain undescended past the age of one, perhaps two,
the testicle becomes dystrophic, which means the ability of the
testicle to both make sperm, which we call spermatogenesis,
and make testosterone, is severely damaged . . . .” Therefore,
contrary to Jonas’ assertion on appeal, Danoff was not testi-
fying that any time a male’s testicles are not in the scrotum,
they can become damaged; rather, he was specifically tes-
tifying that when testicles do not descend at birth and then
remain undescended for a year, they can become dystrophic.
Neither expert testified that the dangers inherent in an unde-
scended testicle are the same if the testicle has descended and
later ascended.
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On the other hand, experts for the defense testified that a
male who has ascending testicles has the same risk of devel-
oping cancer as the rest of the male population. Bukowski
expressly stated that a male with descended testicles at birth
should have testicles that function normally, provide normal
fertility, and carry a minimal risk of testicular cancer develop-
ment. Thus, the only expert testimony that addressed damages
for ascending testicles was produced by the defense, and the
testimony expressly stated that Jonas did not suffer damages
as a result of ascended testicles. Therefore, because Jonas’
experts did not present any testimony specifically regarding
Jonas’ injuries as a result of ascended testicles, the jury would
have had to speculate as to whether Jonas’ ascended testicles
caused any injuries and the extent of those injuries. It is the
duty of the district court to refrain from submitting to the jury
the issue of damages where the evidence is such that it can-
not determine that issue without indulging in speculation and
conjecture. Snyder v. Contemporary Obstetrics & Gyn., 258
Neb. 643, 605 N.W.2d 782 (2000). Consequently, the district
court was correct in directing a verdict against Jonas’ claim
that his alleged injuries were caused by a single undescended
testicle or ascending testicles.
3. Jury Questions Submitted to Court
Jonas has multiple assigned errors related to the court’s
response to the jury’s two questions submitted during its delib-
erations which we address together. We find that the dis-
trict court did not abuse its discretion in answering these
questions.
After the case was submitted to the jury, the jury asked the
court two questions. First, the jury asked, “‘Does the plain-
tiff’s claim of undescended testicles mean both testicles, e.g.,
bilateral?’” Second, it asked, “‘Does “undescended” mean
from birth?[’”] After consulting with counsel for both par-
ties by telephone on the record, the court answered “yes” to
each question.
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[16] The trial judge is in the best position to sense whether
the jury is able to proceed with its deliberations and has
considerable discretion in determining how to respond to
communications indicating that the jury is experiencing con-
fusion. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d
37 (2015). Further, Neb. Rev. Stat. § 25-1116 (Reissue 2016)
states:
After the jury have retired for deliberation, if there
be a disagreement between them as to any part of the
testimony, or if they desire to be informed as to any part
of the law arising in the case, they may request the offi-
cer to conduct them to the court where the information
upon the point of law shall be given, and the court may
give its recollection as to the testimony on the point in
dispute in the presence of or after notice to the parties or
their counsel.
Therefore, the court has discretion to further instruct the
jury and is not limited to simply directing the jury to reread
the instructions previously given as Jonas asserts should have
been done.
(a) Court Did Not Preclude Jury From Performing
Its Function as Fact Finder and Did Not
Comment on Credibility of Witnesses
Jonas asserts that, in answering “yes” to each question sub-
mitted by the jury, the district court did not allow the jury to
perform its role as a fact finder and directed the jury to rely on
the defendants’ witnesses. We disagree.
In support of his argument, Jonas directs us to numerous
cases in which a trial judge went outside his or her role and
commented during trial on the evidence from the bench. We
find those cases inapplicable to a situation in which the judge
provides a response to a jury question, and we decline to fur-
ther address them.
However, Jonas also relies upon Bahrs v. R M B R Wheels,
Inc., 6 Neb. Ct. App. 354, 574 N.W.2d 524 (1998), a premises
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liability action against two separate entities. In that case, we
determined it was improper to instruct the jury that the two
defendants were to be treated the same and that if one was
liable, so was the other. Jonas cites this case, stating that we
determined “it was prejudicial error requiring reversal for
the court to have sua sponte decided there was a joint enter-
prise between the defendants” because such a decision is for
the jury. Brief for appellant at 24. However, we specifically
stated, “assuming, without deciding, that the trial court had
the authority to determine sua sponte as a preliminary matter
the existence of a joint enterprise between the defendants,” it
was error to do so because there was no evidence of a joint
enterprise. Bahrs v. R M B R Wheels, Inc., 6 Neb. Ct. App. at 361-
62, 574 N.W.2d at 529.
Here, the court did not instruct the jury requiring it to
treat a certain set of facts as true. As discussed in more detail
below, the court answered the jury’s questions in a manner
that was consistent with Jonas’ theory of the case. The court
did not instruct the jury that Jonas had ascended testicles or
a single undescended testicle; rather, it simply responded
to the jury’s questions in a manner which was consistent
with Jonas’ theory of the case—that he had bilateral unde-
scended testicles.
Furthermore, Jonas cannot prove he was prejudiced by
the court’s answers to the jury questions. As stated above,
the court’s answers to the jury questions are consistent with
Jonas’ theory of the case as stated in his complaint, pretrial
memorandum, and opening statement. Additionally, the court
stated that the only definition of “undescended” given during
trial was “undescended from birth.” Finally, the court based
its answers on the fact that both of Jonas’ expert witnesses
testified that Jonas had bilateral undescended testicles from
birth. Thus, the court’s answers to the jury’s questions were
taken directly from Jonas’ complaint and the evidence that
Jonas presented during trial. Jonas was not prejudiced by the
court’s answers to the jury’s questions.
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(b) District Court Did Not Abuse Its Discretion
in Consulting Dictionary to Answer
Jury’s Questions
Jonas also assigns that the district court erred in consulting
a “general dictionary” in answering the jury’s questions. This
assigned error is without merit. In explaining to counsel its
decision to answer the jury’s questions, the court stated:
With respect to, “Does undescended mean from
birth?” I’m going to answer, as used in Instruction No.
5, undescended testicles means from birth. And the rea-
son I’m going to do that is because, one, the definition
— I looked for a definition of undescended, and they all
refer, basically, back to undescended testicles. And in
the Merriam-Webster Dictionary, it says, retained within
the inguinal region rather than descending into the scro-
tum, undescended.
Jonas argues that this constituted the trial judge’s conducting
his own independent investigation of the facts, contrary to
Nebraska law. However, the trial judge went on to state that
his response to the question was also based on the testimony
from Jonas’ witnesses and how the term “undescended” was
used throughout the trial. Thus, the trial judge did not base
his answer to the jury’s question solely on the dictionary
definition of undescended. The court’s response was based on
Jonas’ complaint, pretrial memorandum, and opening state-
ment where he stated, “His diagnosis, undescended testicles.
That means from birth, that’s what that term means.” And it
was consistent with the testimony of Jonas’ expert witnesses.
Thus, the court did not abuse its discretion in consulting a
“general dictionary” because the court’s response was consist­
ent with Jonas’ theory of the case and the evidence presented
at trial.
4. Motion for New Trial
In his final assigned error, Jonas asserts that the district
court abused its discretion in denying his motion for a new
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trial. We disagree. Jonas’ motion was predicated on his belief
that the district court erred in issuing instruction No. 5 and
erred again by answering the jury’s questions. However, as
stated above, we find no error in either of these. Therefore,
there are no grounds for a new trial, and the district court was
correct in denying the motion.
5. Defendants’ Cross-A ppeal
[17] The defendants attempted to file a cross-appeal in
this case, arguing that the district court erred in denying their
motion for sanctions against Jonas. Under Neb. Ct. R. App. P.
§ 2-109(D)(4) (rev. 2014), a party filing a cross-appeal must
set forth a separate division of the brief prepared in the same
manner and under the same rules as the brief of appellant.
Vokal v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988,
759 N.W.2d 75 (2009). Thus, under § 2-109(D)(1), the cross-
appeal section must set forth a separate title page, a table of
contents, a statement of the case, assigned errors, propositions
of law, and a statement of facts. See Vokal v. Nebraska Acct.
& Disclosure Comm., supra.
Here, the defendants failed to properly set forth any assign-
ment of error in their cross-appeal. Errors argued but not
assigned will not be considered on appeal. Id. Therefore, we
decline to address the defendants’ attempted cross-appeal.
VI. CONCLUSION
For the foregoing reasons, we affirm the decisions of the
district court.
A ffirmed.