Smith v. Colorado Organ Recovery System, Inc., 269 Neb. 578

Summary

The Nebraska Supreme Court reviewed James R. Smith’s negligence claims arising from the failure of a transplanted donor liver. The court held that the jury’s finding that the use of Euro-Collins solution was not a proximate cause of the liver’s failure was not undermined by the challenged expert testimony, evidentiary rulings, or jury instructions. Because that finding broke the alleged chain of causation, the court concluded that Smith’s claims concerning Nebraska Organ Retrieval System’s alleged duty were also dispositive.

Holdings

1. Smith waived his challenge to the defendants' expert testimony by failing to make a foundational objection during trial when the challenged opinions were offered. The overruling of the pretrial motion in limine was not independently reviewable on appeal.
2. The district court properly refused Smith's requested substantial-factor instruction because the evidence and Smith's theory did not present a case in which the ordinary but-for proximate-cause rule would allow each defendant to escape responsibility or in which the jury could not determine causation.
3. The jury's finding that the Euro-Collins flush was not a proximate cause of the donor liver's failure was dispositive of Smith's claims because the alleged negligence of Spees, CORS, and NORS was asserted as part of a causal chain beginning with that flush.
4. Any error in granting summary judgment for NORS or in refusing instructions concerning the defendants' notification duties was harmless because the jury's finding on causation independently established that none of the defendants' alleged conduct was a proximate cause of Smith's injuries.
5. Judgment for the defendants was proper because Smith failed to show that the jury's special finding that the Euro-Collins flush was not a proximate cause of the liver failure resulted from reversible error.

Questions Presented

1. Whether Smith preserved and established error in challenging the admissibility and reliability of the defendants' expert testimony under Daubert and Schafersman.
2. Whether the district court erred in excluding evidence concerning subsequent remedial measures, alleged hearsay statements, a surgeon's deposition testimony, and UNMC's transplant failure rate.
3. Whether the district court erred by refusing a multiple-cause or substantial-factor jury instruction and by submitting a special interrogatory concerning whether the Euro-Collins flush was a proximate cause of the liver failure.
4. Whether the jury's finding that the Euro-Collins flush did not cause the liver failure was dispositive of Smith's claims against NORS and rendered any error concerning NORS's duty or the defendants' duty to notify UNMC harmless.
5. Whether the district court properly entered judgment for the defendants after the jury found that the Euro-Collins flush was not a proximate cause of the donor liver's failure.

Disposition

affirmed