Summary
The Nebraska Supreme Court affirmed a medical malpractice judgment for the plaintiffs against physicians and their employer. The court held that voir dire questioning about the importance of physical health and mobility did not constitute an improper Golden Rule argument warranting a mistrial, curative instruction, or new trial. It also held that the defendants waived their challenge to denial of a directed verdict at the close of the plaintiffs' case by presenting evidence, and that the evidence supported submission of the standard-of-care issue to the jury.
Topics
Practice areas
Questions Presented
- Whether counsel's voir dire questions about the importance of physical health and mobility constituted an improper Golden Rule argument requiring a mistrial.
- Whether the trial court abused its discretion by declining to give an immediate curative instruction during voir dire.
- Whether the trial court abused its discretion in denying the defendants' motion for a new trial based on the voir dire discussion.
- Whether the defendants waived their challenge to denial of a directed verdict at the close of the plaintiffs' case by presenting evidence afterward.
- Whether the trial court improperly permitted Backer to testify regarding whether Babbe met the standard of care.
- Whether the evidence at the close of all evidence established a breach of the medical standard of care sufficient to submit the case to the jury.
Holdings
- The voir dire questioning did not constitute a Golden Rule argument because the prospective jurors were not asked to place themselves in Anderson's position or to identify an amount they would want to receive as damages. The trial court therefore did not abuse its discretion in denying a mistrial.
- The trial court did not abuse its discretion by declining to give an immediate curative instruction during voir dire.
- The trial court did not abuse its discretion in denying the defendants' motion for a new trial based on the voir dire discussion.
- The defendants waived any error in overruling their motion for directed verdict at the close of the Andersons' case in chief because they introduced evidence after the motion was denied.
- The trial court did not err in permitting questioning of Backer regarding whether Babbe met the standard of care because Backer had been designated as an expert on standard-of-care issues.
- The trial court properly denied the defendants' motion for directed verdict at the close of all evidence because the evidence, including evidence introduced by the defendants, established a breach of the applicable medical standard of care and reasonable minds could differ.
Key quotations
“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.” (197)
“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.” (201)
“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.” (203)
Factual background
Rickey Anderson received treatment from Elisabeth Backer and Gregory Babbe in November 2012 for a red and swollen right lower extremity diagnosed as cellulitis. Neither physician obtained an x ray or reevaluated the cellulitis diagnosis, although Anderson had neuropathy and symptoms consistent with Charcot foot. Anderson was later diagnosed with Charcot foot in January 2013 and claimed that earlier diagnosis and immobilization would have prevented substantial deterioration, fractures, dislocations, and subluxations. Expert testimony and testimony elicited from Backer supported that the physicians breached the applicable standard of care.
Procedural history
The Andersons sued Babbe, Backer, and UNMC Physicians after Anderson developed a deformed Charcot foot following treatment for what had been diagnosed as cellulitis. A Douglas County District Court jury found for the Andersons, allocated liability among the defendants, and awarded $800,000 in damages. The district court denied the defendants' motion for new trial or judgment notwithstanding the verdict. The Nebraska Supreme Court moved the appeal to its docket and affirmed.