Simon v. Drake, 285 Neb. 784

Bruce Simon sued Dr. Mary Drake for medical malpractice; a jury returned for Drake.
Garvin, Simon’s treating physician, testified as an expert about standard of care despite not being designated as an expert.
The trial court previously ruled Garvin could not testify about standard of care or causation, but allowed questions on needle size and related issues.
Garvin testified about needle length variability and that multiple needle penetrations are not uncommon; trial court did not give a curative instruction.
The Court of Appeals affirmed that Garvin’s testimony was error but harmless; the Nebraska Supreme Court reversed, holding the error prejudicial due to Garvin’s treating-physician status.
The court remanded for a new trial, concluding Garvin’s testimony improperly influenced the jury and deprived Simon of a meaningful challenge to its weight.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Garvin could testify about standard of care	Simon argues Garvin was not designated as an expert and cannot testify on standard of care.	Drake contends Garvin could testify about aspects within lay perception and treatment context.	Admissibility error; Garvin cannot testify on standard of care.
Whether admission of Garvin’s standard-of-care testimony was prejudicial	Garvin’s status as treating physician gave him coercive weight against Simon.	The experts testimony was substantially similar; error was harmless.	Prejudice presumed; reversible error requiring new trial.

Barry v. Bohi, 221 Neb. 651 (1986) (treating-physician expert testimony can create prejudice; panel/opinion weight matters)
American Central City v. Joint Antelope Valley Auth., 281 Neb. 742 (2011) (harmless error cannot cover prejudicial admission of expert testimony)
Werner v. County of Platte, 284 Neb. 899 (2012) (standard for appellate review of evidentiary rulings)
Thone v. Regional West Med. Ctr., 275 Neb. 238 (2008) (necessity of expert testimony to establish causation in medical malpractice)