930 N.W.2d 60
Neb. Ct. App.2019Background
- Grant Jonas sued his pediatrician Dr. Brent Willman and Doctors of Children—Lincoln for allegedly failing to diagnose congenital bilateral undescended testicles (cryptorchidism) present at birth, resulting in infertility and increased cancer risk.
- Jonas’s pretrial memorandum and complaint framed the claim as congenital bilateral undescended testicles (i.e., undescended from birth); his counsel repeatedly asserted that theory at trial.
- Jonas’s experts uniformly testified the injuries flowed from bilateral undescended testicles present from birth and rejected the theory that the testicles had descended and later ascended.
- Defendants presented evidence (including multiple childhood examinations and defense experts) that Jonas’s testicles were descended at birth and later ascended, and that ascended testicles do not carry the same infertility/cancer risk.
- The court refused Jonas’s broader proposed statement-of-the-case instruction (which would have allowed recovery for a single undescended testicle or for ascended testicles), answered two jury questions by saying “yes” (that the claim meant bilateral and that “undescended” meant from birth), and entered a directed verdict precluding damages claims premised on ascended or single undescended testicles.
- Verdict for defendants; Jonas’s motion for new trial denied; defendants’ attempt at cross-appeal on sanctions rejected for procedural defects. Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred refusing Jonas’s proposed, broader statement-of-the-case instruction | Jonas: evidence supported submitting negligence theories for a single undescended testicle or for testicles that descended then ascended; instruction limiting to bilateral undescended-from-birth was prejudicial | Defendants: plaintiff’s pleadings and pretrial order limited the case to congenital bilateral undescended testicles; broader instruction would change theory midtrial and include improper general allegations | Court: Affirmed refusal — instructions must track pleadings and evidence; plaintiff’s proposed catch‑all negligence language improper and unsupported by expert causation testimony |
| Whether directed verdict precluding damages based on ascended or single undescended testicle was proper | Jonas: evidence (expert testimony) allowed a jury to find damages even if testicles had ascended or only one was undescended | Defendants: plaintiff’s experts tied injuries to bilateral congenital condition; no competent expert linked ascended or single undescended testicle to claimed damages | Court: Affirmed — no admissible expert proof of causation for ascended/single-testicle theory; submitting damages on speculation would be improper |
| Whether answering jury questions (“bilateral?” and “undescended = from birth?”) by saying “yes” was an abuse of discretion or usurped jury role | Jonas: answers compelled a particular factual reading and thereby usurped the jury and vouched for one side | Defendants: answers were consistent with plaintiff’s pleaded theory and the evidence presented; court had discretion to clarify law/terminology | Court: No abuse of discretion — answers reflected the pleadings and how term was used at trial; judge properly relied on record and had discretion to clarify |
| Whether denial of new trial was error | Jonas: asserted error in instruction and jury answers warranted a new trial | Defendants: no error in instructions or jury communication; denial proper | Court: Denial affirmed — no reversible error in instructions, jury answers, or evidentiary rulings; no unfair surprise shown |
Key Cases Cited
- Armstrong v. Clarkson College, 297 Neb. 595 (question of law review of jury instructions)
- Lesiak v. Central Valley Ag Co-op, 283 Neb. 103 (directed verdict review; evidence construed in nonmovant’s favor)
- Doe v. Zedek, 255 Neb. 963 (court’s gatekeeping role on whether evidence permits jury consideration)
- Thone v. Regional West Med. Ctr., 275 Neb. 238 (medical malpractice proximate cause requires proof physician’s breach caused injury)
- Cohan v. Medical Imaging Consultants, 297 Neb. 111 (Nebraska rejects loss‑of‑chance doctrine)
- Graham v. Simplex Motor Rebuilders, Inc., 189 Neb. 507 (error to submit a general allegation of negligence to a jury)
- Hall v. County of Lancaster, 287 Neb. 969 (pretrial order binds parties; limits issues/evidence)
- Snyder v. Contemporary Obstetrics & Gyn., 258 Neb. 643 (court must not submit damages issue when resolution would require speculation)