Ammon v. Nagengast, A-15-1184

Background

Patricia Cody underwent laparoscopic surgery on January 23, 2012; during the operation she suffered cardiac arrest and died the next day.
Plaintiff Sheena Ammon (special administrator) sued multiple providers alleging professional negligence; several defendants (including CRNA Denise Murry and her employer) settled pretrial and were dismissed.
Remaining trial defendants were surgeon Dr. Stephen Nagengast and his employer GSA; plaintiff alleged failure to place Cody in Trendelenburg/Durant positions after the procedure was to be aborted.
Competing expert testimony: plaintiff’s expert (Lanzafame) said repositioning could have released an air embolus and that failure to do so caused injury; defense expert (Fitzke) and Dr. Nagengast testified CPR/ACLS was proper once patient was in arrest.
Trial court instructed the jury on possible allocation of fault to the settled nonparty (Murry) pursuant to Nebraska comparative-fault statutes; jury found for defendants.
On appeal, Ammon argued instructions and verdict forms allowing allocation to the settled tortfeasor were erroneous and prejudicial; the Court of Appeals affirmed, holding instructions were proper (or harmless) under statutory scheme.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether jury instruction and verdict forms permitting allocation of fault to a settled nonparty (Murry) were improper because only appellees remained at submission	Ammon: § 25-21,185.10 governs single-defendant submissions; allocation instructions were not allowed when only one defendant remained	Appellees: settling nonparty was dismissed by release; § 25-21,185.11 applies to settlements and requires trier-of-fact apportionment of the released party’s share	Court: § 25-21,185.11 governs when plaintiff settled with a joint tortfeasor; allocation instruction was appropriate (and taken from pattern jury instructions)
Whether comparative-fault statutes apply when claimant’s contributory negligence was not asserted	Ammon: statutes concern contributory negligence and thus inapplicable here	Appellees: statutory scheme covers cases where negligence of a third party is asserted as a defense; here defendants asserted negligence of the settling third party	Court: statutes apply because defendants alleged third-party negligence as a defense; § 25-21,185.11(1) mandates reduction by released person’s share as determined by the factfinder
Whether the instruction on totaling/allocation of damages (Instruction 24) was misleading or unsupported by evidence	Ammon: language referencing Murry was prejudicial and unsupported (no expert opining Murry breached standard)	Appellees: evidence and testimony (including plaintiff’s own expert) raised Murry’s potential negligence and its relation to appellees’ treatment; offer of proof for allocation was made	Court: instruction was supported by pleadings and evidence; pattern instruction used; even if error, verdict for defendants made any error harmless because jury never reached allocation issue
Whether Ammon may raise on appeal that no expert opined breach by Murry	Ammon: no expert opinion showed Murry breached standard of care, so negligence allocation to Murry was unsupported	Appellees: argument was not preserved for appeal	Court: argument was raised first in reply brief/oral argument and was waived because it was not assigned in the initial brief

Key Cases Cited

RM Campbell Indus. v. Midwest Renewable Energy, 294 Neb. 326, 886 N.W.2d 240 (Neb. 2016) (standard of review for jury instructions)
Scheele v. Rains, 292 Neb. 974, 874 N.W.2d 867 (Neb. 2016) (appellant must show prejudicial effect of an instruction)
Tadros v. City of Omaha, 273 Neb. 935, 735 N.W.2d 377 (Neb. 2007) (statutory abrogation of joint-and-several rule where claimant settles with a tortfeasor; trier-of-fact determines released party’s share)
Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d 455 (Neb. 2001) (§ 25-21,185.10 inapplicable when only one putative defendant exists at submission)
In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (Neb. 2015) (use of Nebraska Jury Instructions when applicable)
Genetti v. Caterpillar, Inc., 261 Neb. 98, 621 N.W.2d 529 (Neb. 2001) (issues not raised in appellant’s initial brief are waived)