Worth v. Kolbeck

728 N.W.2d 282

273 Neb. 163

Sonja WORTH, as Mother and Next Friend of Austin Worth, a Minor, Appellant and Cross-Appellee, v. Terrence J. KOLBECK, M.D., Appellee and Cross-Appellant.

No. S-05-269.

Supreme Court of Nebraska.

March 9, 2007.

Ronald J. Palagi and Joseph B. Muller, Omaha, of Law Offices of Ronald J. Palagi, P.C., L.L.O., for appellant.

Patrick G. Vipond, Omaha, and Denise M. Destache, of Lamson, Dugan & Murray, L.L.P., for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

HEAVICAN, C.J.

NATURE OF CASE

This is a medical malpractice action brought by Sonja Worth on behalf of her son, Austin Worth, against Terrence J. Kolbeck M.D. Sonja alleged that Kolbeck's negligence caused severe brain injuries to Austin shortly before his birth. The case was tried to a jury, which returned a verdict in favor of Kolbeck. Sonja assigns errors related to the jury instructions and the court's admission of deposition testimony from Sonja's designated expert taken for discovery. We conclude that Sonja's assigned errors do not require reversal.

BACKGROUND

The bill of exceptions does not include most of the trial. It is limited to the arguments regarding the admissibility and the reading into evidence of deposition testimony from Sonja's medical expert, Dr. Stephen Glass; two jury instruction conferences; and the testimony of an expert document examiner, Marlin Rauscher.

The transcript shows that in April 1999, Sonja filed this action on behalf of Austin. Although the original action included a claim by the parents, Sonja and Mark Worth, that claim was dismissed at some point. Sonja alleged the following facts in her complaint. Sonja "has had controlled, Type I diabetes mellitus since 1992." On April 9, 1997, Sonja was 33 weeks pregnant with Austin and was admitted to an Omaha, Nebraska, hospital emergency room at 5:44 p.m., suffering from diabetic ketoacidosis. Ketoacidosis is the "presence of an excessive amount of ketone bodies [acids] in the tissues and body fluids."¹ Austin was diagnosed with hypoxic-ischemic encephalopathy, directly related to Sonja's ketoacidosis. This diagnosis refers to a perinatal brain injury due to lack of oxygen.²

Sonja alleged that from 6:15 to 6:30 p.m. on April 9, 1997, Austin's heartbeats were undetectable. The hospital placed Sonja on fetal monitoring and at 6:40 p.m., consulted Kolbeck. Austin's assessment did not change appreciably throughout the night, and at 7:40 the next morning, Kolbeck ordered an ultrasound, which Sonja alleged suggested "severe placental dysfunction and fetal compromise." At 9:44 a.m., an emergency cesarean section was performed. Sonja alleged that Austin suffered brain injuries as a proximate result of Kolbeck's negligence and that Austin is severely and permanently mentally retarded. Specifically, Sonja alleged that Kolbeck was negligent in failing to (1) order an immediate ultrasound on April 9, (2) recognize Austin's fetal distress and arrange for an emergency cesarean section on April 9, and (3) promptly respond to the ultrasound on April 10.

In his answer, Kolbeck denied that he was negligent or had caused Austin's injuries. Kolbeck affirmatively alleged that he had met the standard of care for physicians in his specialty in Omaha or similar communities. He also affirmatively alleged that Sonja and Mark had been negligent in caring for Sonja's illness, which had proximately caused Austin's condition and damages.

Sometime in early 2000, Sonja's counsel contacted Glass, a pediatric neurologist, to review Austin's case. In December 2000, Kolbeck's counsel conducted a discovery deposition of Glass.

A jury trial was conducted from October 4 through 20, 2004. At trial, Sonja was represented by attorneys other than the attorney who represented her at Glass' deposition. On October 19, Kolbeck moved to have Glass' deposition read into evidence. Sonja's counsel objected that he was not representing Sonja when Glass' deposition was taken and would not waive Sonja's right to cross-examination. Kolbeck's counsel stated that he had been unable to obtain Glass' presence for trial and offered the affidavit of a paralegal, averring that she had attempted to contact Glass on 2 different days, a week earlier.

Sonja's counsel argued that because defense counsel had not made a reasonable effort to obtain Glass' attendance, his deposition testimony was inadmissible under Neb.Rev.Stat. § 27-804(1)(e) (Reissue 1995). Sonja's counsel also argued that Sonja had not been afforded an opportunity to develop Glass' testimony because Kolbeck had taken the deposition strictly for discovery purposes.³ The court overruled the objections.

The portion of Glass' deposition that was read into the record included Glass' opinion that (1) Austin's condition was directly related to Sonja's ketoacidosis; (2) damage leading to irreversible loss of function started in the late evening on April 9, 1997; (3) as Sonja's metabolism was restored to a normal range, the impact of her condition on the fetus was lessened, which is why Austin's "Apgar scores" were not profoundly low when he was delivered the next morning; and (4) a delivery 2 hours earlier on the morning of April 10 would not have made any difference because by then, Sonja's condition had been restored to a more normal range.

On October 19, 2004, the same day Glass' deposition was read into the record, the court allowed Sonja to present rebuttal testimony from Rauscher, over Kolbeck's continuing objection. Rauscher, a document expert, testified that someone had altered two listed times on a document from another exhibit. The original exhibit is not part of this record, and Rauscher did not identify the document he had examined. Kolbeck contended that he was unfairly surprised by this expert and that Rauscher should therefore not be allowed to testify. The objection was overruled.

Also on October 19, 2004, the first jury conference was conducted. Instruction No. 6 advised the jury that it could not consider Sonja's acts or omissions in deciding whether Austin was entitled to damages. Kolbeck asked that the instruction "be modified to indicate to the jury that this in no way indicates that the acts or omissions of a parent cannot be a proximate cause of the injury to Austin." The court denied this request.

The next day, before closing arguments, Kolbeck requested that a supplemental jury instruction be given to the jury. Kolbeck argued that without the supplemental instruction, he could not argue that Sonja's actions were a proximate cause of Austin's injuries under instruction No. 6. The court agreed that while instruction No. 6 was correct, it needed modification. The court therefore allowed the supplemental instruction.

Supplemental instruction No. 6 advised the jury of Kolbeck's claim that Sonja's conduct was the only proximate cause of Austin's injuries. The court did not alter the original instruction No. 6, but renumbered it to supplemental instruction No. 7. The jury returned a unanimous verdict for Kolbeck.

ASSIGNMENTS OF ERROR

Although Sonja assigns four errors in her brief, we restate them in accordance with those actually argued in her brief. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.⁴ Sonja's assigned land argued errors are that the district court erred in (1) failing to properly instruct the jury; (2) failing to instruct the jury, on its own motion, on the issue of altered documents; and (3) allowing Glass' discovery deposition to be read into evidence after Sonja did not call Glass as a witness.

On cross-appeal, Kolbeck assigns that the trial court erred in allowing Rauscher to testify when Sonja failed to disclose him as an expert witness during discovery.

STANDARD OF REVIEW

Whether a jury instruction given by a trial court is correct is a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.⁵

Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion.⁶ An abuse of discretion in a ruling on the admissibility of evidence occurs when the trial judge's reasons or rulings are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.⁷

ANALYSIS

JURY INSTRUCTION ON SOLE PROXIMATE CAUSE

Sonja contends that the court's giving of supplemental jury instruction No. 6 was reversible error as a matter of law because the instruction (1) implied that there could be only a single proximate cause of Austin's injuries and damages; (2) distracted the jurors from a direct assessment of Kolbeck's negligence and was intended to put Sonja's acts or omissions before the jury as an intervening cause; (3) misstated Sonja's burden of proof; (4) directly conflicted with supplemental instruction No. 7 by imputing Sonja's negligence to Austin; and (5) improperly emphasized Kolbeck's defense by negating language in other instructions. Sonja does not contend that the evidence was insufficient to support a sole proximate cause instruction.

Kolbeck contends that the record is insufficient to review any of Sonja's assigned errors. Kolbeck also contends that because Sonja's claim was dismissed, she was a nonparty to the action and he was entitled to the "conduct of nonparty third person" pattern instruction in NJI2d Civ. 3.44. Supplemental instruction No. 6 followed the pattern instruction in NJI2d Civ. 3.44 and provided: "[Kolbeck] claims that Sonja Worth's conduct was the only proximate cause of Austin Worth's injuries. By doing so, [Kolbeck] is simply denying that his conduct was a proximate cause of the injury. Remember, [Sonja] must prove that [Kolbeck's...