A-24-0309 Cynthia L. Lear, as personal representative of the Estate of Joshua W. Lear, deceased v. Nebraska Methodist Health System, Inc., d/b/a Methodist Health System; The Nebraska Methodist Hospital; Omaha Thoracic & Cardiovascular Surgery, P.C.; and John T. Batter, M.D.
Douglas County, District Court, Judge Timothy P. Burns
Attorneys for Appellant/Cross-Appellee Cynthia L. Lear: Joseph P. Cullan, Patrick J. Cullan, Joseph S. Fox (Cullan & Cullan L.L.C.)
Attorneys for Appellee/Cross-Appellant Nebraska Methodist Health System and the Nebraska Methodist Hospital: Robert M. Schartz, Julie M. Ryan (Abrahams Kaslow & Cassman LLP)
Attorneys for Appellee/Cross-Appellant Omaha Thoracic & Cardiovascular Surgery and John T. Batter: Robert A. Mooney, Emily E. Palmiscno (Mooney, Lenaghan, Westberg Dorn, LLC)
Civil Action: Medical Malpractice
Action Taken by Trial Court: The district court affirmed the jury’s verdict finding in favor of Appellees/Cross-Appellants.
Assignments of Error on Appeal: Appellant assigns that the district court erred in: excluding its institutional claims by not providing the necessary and required jury instructions; failing to give certain jury instructions on the effects of allocation of negligence and proximate and concurrent cause; giving certain improper, erroneous, and confusing jury instructions that a certain doctor was not an agent of the Methodist defendants, on the statutory definition of negligence, and that the Methodist defendants were to be grouped as one defendant.
Appellees/Cross-Appellants Nebraska Methodist Health System and the Nebraska Methodist Hospital assign that the district court abused its discretion in: failing to exclude some of Appellant’s expert testimony that was based solely on that expert’s personal practices; and failing to exclude one of Appellant’s expert witnesses as an expert for failure to comply with the locality rule, or, alternatively, failing to exclude certain testimony that was based solely on the expert’s personal practices.
Appellees/Cross-Appellants Omaha Thoracic & Cardiovascular Surgery and John T. Batter assign that the district court erred in: overruling Batter’s objections to, and in admitting Exhibit 96 – the purported affidavit of one of Appellant’s expert witnesses in opposition to Batter’s motion to strike – for the reasons that Exhibit 96 lacked foundation, was not based upon personal knowledge, was not timely disclosed based upon local rules, and contained new purported expert opinions which were not timely disclosed pursuant to court progression orders, not timely or properly disclosed in response to discovery requests and deposition questions, and not properly or timely supplemented under Neb. Disc. R. § 6-326(e); overruling Batter’s motion to strike the testimony of one of Appellant’s expert witnesses, in admitting the testimony of that witness at trial in finding that opinions regarding the local standard of care for cardiothoracic surgery were foundational in nature and not opinion subject to discovery rules, and in finding that the locality rule did not apply to this Omaha malpractice case.