Motions for New Trial: Judges: Words and Phrases:
Appeal and Error. An appellate court reviews a
denial of a motion for new trial for an abuse of discretion.
A judicial abuse of discretion 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 disposition.
Negligence: Proof. To prevail in any
negligence action, a plaintiff must show a legal duty owed by
the defendant to the plaintiff, a breach of such duty,
causation, and resulting damages.
Negligence: Motor Vehicles: Proof. In an
automobile negligence action, a plaintiff must prove each of
the following elements: (1) that the defendant was negligent
in one or more of the ways alleged, (2) that this negligence
was a proximate cause of the collision, (3) that the
collision was a proximate cause of some damage to the
plaintiff, and (4) the nature and extent of that damage.
Expert Witnesses. When the character of an
alleged injury is subjective rather than objective, a
plaintiff must establish the cause and extent of the injury
through expert medical testimony.
Physicians and Surgeons: Expert Witnesses: Words and
Phrases. Although expert medical testimony need not
be couched in the magic words "reasonable medical
certainty" or "reasonable probability, " it
must be sufficient as examined in its entirety to establish
the crucial causal link between the plaintiff's injuries
and the defendant's negligence.
__:__:__. 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.
Pleadings: Proof. It is an elementary rule
of pleading that matters admitted by the pleadings need not
Neb. 655] 8. Pleadings.
Generally, an admission made in a pleading on which the trial
is had is more than an ordinary admission, it is a judicial
Pleadings: Evidence: Waiver. A judicial
admission is a formal act done in the course of judicial
proceedings which is a substitute for evidence, thereby
waiving or dispensing with the production of evidence by
conceding for the purpose of litigation that the proposition
of fact alleged by the opponent is true.
Pleadings: Intent. It is important to
consider the context in which a judicial admission is made.
___:__.A judicial admission does not extend beyond the
intendment of the admission as clearly disclosed by its
12. Negligence: Motor Vehicles: Damages.
When a defendant admits the collision caused "some
injury" but expressly denies the nature and extent of
the injuries and damages claimed, it is improper to construe
the admission as conceding the collision caused all of the
injuries claimed by the plaintiff.
Verdicts: Appeal and Error. In determining
the sufficiency of the evidence to sustain a verdict, the
evidence must be considered most favorably to the successful
party, every controverted fact must be resolved in the
successful party's favor, and the successful party is
entitled to the benefit of any inferences reasonably
deducible from the evidence.
Juries: Verdicts: Presumptions. When the
jury returns a general verdict for one party, a court
presumes that the jury found for the successful party on all
issues raised by that party and presented to the jury.
Trial: Expert Witnesses. Triers of fact are
not required to take opinions of experts as binding upon
them, and determining the weight to be given expert testimony
is uniquely the province of the fact finder.
from the District Court for Buffalo County: John H. Marsh,
Michael W. Meister for appellant.
Jeffrey H. Jacobsen and Nicholas R. Norton, of Jacobsen, Orr,
Lindstrom & Holbrook, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and
Funke, JJ., and Moore, Chief Judge.
an automobile collision, Barbara Lewison sued Carol Renner
for negligence, claiming injuries to her neck, back, and [298
Neb. 656] wrists. Renner admitted her negligence caused the
collision and also admitted the collision caused "some
injury" to Lewison, but specifically denied the nature
and extent of the injuries and damages claimed. The jury
returned a general verdict for Renner. Lewison moved for a
new trial, arguing the verdict was inadequate in light of
Renner's admissions. The trial court denied the motion
for new trial, and Lewison appeals. Finding no error, we
December 21, 2012, in Kearney, Nebraska, Renner made a left
turn in front of a vehicle being driven by Lewison and the
two vehicles collided. Lewison was taken from the scene by
ambulance and treated in the emergency room for complaints of
neck and back pain.
2014, Lewison filed a negligence action against Renner in
Buffalo County District Court. She alleged the collision
caused injuries to her neck, back, and wrists. She further
alleged that because of those injuries, she incurred medical
expenses of $53, 270 and experienced mental and physical pain
operative answer admitted her negligence was the proximate
cause of the collision with Lewison and further admitted
"the collision was the cause of some injury to
[Lewison]." But Renner "specifically denie[d] the
nature and extent of the damage and injury claimed by
Evidence Presented at Trial
case was tried to a jury. Lewison testified at trial, but
recalled very few details of her medical history and was
generally a poor historian. Most of the evidence regarding
Lewison's medical history and treatment was provided
through the video depositions of four medical experts. Of the
four medical experts, three were Lewison's treating
doctors and one was hired by Renner as a defense expert.
only exhibits Lewison offered at trial were the video
depositions of her doctors and the standard life expectancy
[298 Neb. 657] table. She did not offer any evidence
regarding the amount of her medical expenses, nor did she
offer evidence of lost earnings, property damage, or other
special damages. At oral argument before this court,
Lewison's attorney explained that the decision not to
offer evidence of Lewison's medical expenses was a
strategic one, designed to avoid anchoring the jury to a
formulaic approach to calculating damages.
family doctor testified that 1 week after the collision, his
office treated Lewison for tightness in her neck and
bruising. Lewison returned to the family doctor 10 days
later, reporting moderate neck spasms. CT scans of
Lewison's head, neck, and thoracic spine were negative.
She was referred to physical therapy and prescribed pain
to the family doctor, Lewison first complained to him about
tingling in her hands on February 5, 2013, roughly 6 weeks
after the collision. He ruled out any injuries related to her
cervical spine and eventually diagnosed her with carpal
tunnel syndrome and referred her to an orthopedic hand
family doctor was not asked to offer an opinion on whether
the collision caused Lewison's neck and wrist complaints.
But he did testify that her neck complaints were
"consistent" with the collision and that the
collision "could" have caused her wrist pain. When
asked whether "some of Lewison's medications were
related to injuries suffered in the 2012 collision, he
replied, "I think sometimes yes, sometimes no. She has
other aches and pains elsewhere. But, yes, sometimes she
takes it for back pain, or neck pain, or head pain." The
family doctor summarized:
I would say [Lewison] is a unique individual and maybe
doesn't read the book as far as being a standard
run-of-the-mill patient, and that she might have aches and
pains that sometimes are hard to figure out no matter what
day of the week it is.
Neb. 658] (b) Hand Surgeon
family doctor referred her to an orthopedic hand and
microvascular surgeon in Kearney. The hand surgeon first saw
Lewison in March 2013, approximately 3 months after the
collision. At that time, Lewison complained of numbness and
tingling in both hands. The hand surgeon testified that
Lewison had undergone a carpal tunnel surgery in 1992, and he
ultimately performed additional carpal tunnel surgeries in
2014. When asked whether the collision could have caused
Lewison's wrist complaints, the hand surgeon replied,
"Well, it's possible." Lewison's counsel
Q . . . [I]n this case, if we didn't have anything other
than the description provided by Ms. Lewison of the accident,
would it be more likely than not, then, to say that the
accident caused ... the carpal tunnel?
A Well, you know, I - I'm not sure that I can say that
asked directly "whether or not the automobile accident
of December 21st, 2012, caused or contributed ... in any
way" to Lewison's ...