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Jonas v. Willman

Court of Appeals of Nebraska

May 21, 2019

Grant Jonas, appellant,
Brent Willman, M.D., and Doctors of Children-Lincoln, PC, appellees.

         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 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.

         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 [27 Neb.App. 252] 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 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.

         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 producing 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 evidence 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.

          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.

         [27 Neb.App. 253] Patrick G. Vipond, William R. Settles, and John M.Walker, of Lamson, Dugan & Murray, L.L.P., for appellees.

          Riedmann, Bishop, and Arterburn, Judges.

          Riedmann, Judge.


         Grant 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.


         Jonas 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.

         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.

         [27 Neb.App. 254] 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' 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.

         In 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.

         In 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.

         In 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.

         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, 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 case.

         After 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 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 applicable 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 ...

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