Anderson v. Babbe, 933 N.W.2d 813

In Nov. 2012 Rickey Anderson presented with a red, swollen right lower extremity; Drs. Backer and Babbe diagnosed and treated cellulitis but did not obtain x-rays or reevaluate for Charcot foot.
In Jan. 2013 a podiatrist diagnosed Charcot foot and testified earlier x-rays and immobilization would likely have prevented the deformity.
Anderson and his wife sued Backer, Babbe, and UNMC Physicians for medical malpractice and loss of consortium; jury trial followed.
During voir dire plaintiff’s counsel asked venire members about the importance of mobility; several jurors described how loss of mobility would affect them. Defense moved for mistrial and a curative instruction; the court denied both but later prevented further similar voir dire.
Plaintiffs presented two experts (a podiatrist and a family physician) who testified defendants should have suspected Charcot, obtained imaging, and immobilized the foot; defendants moved for directed verdict after plaintiffs’ case—court overruled—and then presented evidence and called Backer (designated as an expert) who was cross-examined.
The jury returned verdicts for the Andersons totaling $800,000; defendants appealed arguing improper Golden Rule voir dire and insufficient proof of breach of standard of care.

Issue	Anderson's Argument	Babbe/Backer (Defendants) Argument	Held
Voir dire Golden Rule / mistrial	Questioning about importance of mobility was proper venire inquiry and did not ask jurors to put themselves in plaintiff’s shoes	Voir dire improperly invited jurors to identify with plaintiff; mistrial or curative instruction required	No Golden Rule exhortation occurred; trial court did not abuse discretion in denying mistrial or curative instruction
New trial based on voir dire	No prejudice from voir dire; existing preliminary and final jury instructions cured any risk	Voir dire prejudiced jury; new trial should be granted	No abuse of discretion; voir dire was undeveloped and instructions discouraged sympathy
Directed verdict at close of plaintiffs’ case	Plaintiffs’ experts (and later evidence) proved standard of care and causation	Plaintiffs’ experts failed to establish applicable local standard of care and breach; directed verdict required	Defendants waived any error by offering evidence after the motion was overruled; thus court properly denied the motion
Admissibility of Backer testifying about Babbe’s standard of care	Backer had been designated in interrogatory answers as an expert for defendants and could be questioned about Babbe’s conduct	Backer was not designated to opine about others and should not have been allowed to opine on Babbe	Court correctly allowed questioning because Backer was designated as a party expert; no error

Paro v. Farm & Ranch Fertilizer, 243 Neb. 390 (Golden Rule argument improper but reversible only if jurors were prejudicially affected)
Simon v. Drake, 285 Neb. 784 (treating physician not designated as expert should not be permitted to give standard-of-care opinion against patient)
Bradstreet v. Grand Island Banking Co., 89 Neb. 590 (defendant who presents evidence after a denied directed-verdict motion waives the right to challenge that denial on appeal)
Denali Real Estate v. Denali Custom Builders, 302 Neb. 984 (directed-verdict standard: verdict proper only when reasonable minds can draw but one conclusion)
Hemsley v. Langdon, 299 Neb. 464 (medical malpractice ordinarily requires expert testimony establishing the applicable standard of care)