Jury Instructions. Whether the jury
instructions given by a trial court are correct is a question
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.
Directed Verdict: Appeal and Error. 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
reasonably be deduced from the evidence.
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.
Motions for New Trial: Appeal and Error. An
appellate court reviews a denial of a motion for new trial
for an abuse of discretion.
Negligence: Trial. Generally, it is error to
submit a general allegation of negligence to the jury.
Pretrial Procedure: Parties. A pretrial
order is binding upon the parties.
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.
Jury Instructions: Pleadings: Evidence. A
litigant is entitled to have the jury instructed upon only
those theories of the case which are [27 Neb.App. 252]
presented by the pleadings and which are supported by
Jury Instructions: Proof: Appeal and Error.
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
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.
Physician and Patient: Negligence. Nebraska
does not recognize the loss-of-chance doctrine.
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
producing it and upon whom the burden is imposed.
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
Trial: Evidence: Proof. The burden of proof
is not sustained by evidence from which a jury can arrive at
its conclusions only by guess, speculation, or conjecture.
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.
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.
from the District Court for Lancaster County: John A.
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.
Neb.App. 253] Patrick G. Vipond, William R. Settles, and John
M.Walker, of Lamson, Dugan & Murray, L.L.P., for
Riedmann, Bishop, and Arterburn, Judges.
Jonas brought a medical malpractice action alleging 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.
brought a medical malpractice suit against Brent Willman,
M.D., and his professional practice, Doctors of Children -
Lincoln, PC, in 2013. Jonas alleged that he was born with
congenital bilateral cryptorchidism and that Willman was
negligent in not diagnosing, treating, or referring 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
recognize and treat his condition.
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.
Neb.App. 254] 1. Jonas' Medical History
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.
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' medical
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 examined 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.
2003, Jonas was examined by Erin Hoffman, a new physician
assistant who worked for Willman. While examining 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.
2008, Hoffman became concerned that Jonas' penis was
abnormally small and that his genitalia were not developing
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 [27 Neb.App. 255] concerns about Jonas'
penis size and testicles. Willman referred Jonas to Dr.
Jean-Claude Desmangles, an endocrinologist, to evaluate him
for delayed puberty.
March 2009, Desmangles performed a physical examination on
Jonas and could not locate his testicles. Desmangles then
ordered an ultrasound examination of Jonas, which indicated
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.
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
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, PC;
and Doctors of Children - Lincoln, alleging that the
defendants were negligent in failing to identify Jonas'
bilateral undescended testicles and in failing to timely
refer him to specialty care for this condition. Complete
Children's Health was subsequently dismissed from the
multiple continuances and lengthy discovery, a pretrial
conference was held in June 2015. Prior to the pretrial
conference, the parties were ordered to submit a pretrial
conference 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] [27 Neb.App. 256] was born with a medical
condition known as a congenital bilateral
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
applicable statute of limitations, and the parents agreed.
The case proceeded with Jonas, who was no longer a minor, as
the sole plaintiff.
on Jonas' claim was held in February 2017.
Jonas' opening statement, his counsel repeatedly stated
that Jonas was born with undescended testicles, which caused