S-11-0744, Bruce A. Simon (Appellant) v. Mary Kay Drake, M.D.
Douglas County, Judge Gary B. Randall
Attorneys: Robert M. Slovek, Douglas W. Peters (Kutak Rock LLP) (Appellant) --- Joseph S. Daly, Mary M. Schott (Sodoro Daly & Sodoro PCLLO)
Civil: Medical malpractice action
Proceedings below: The jury found Appellee was not negligent in her treatment of Appellant. The Court of Appeals affirmed in a memorandum opinion. See Simon v. Drake, A-11-0744 (August 2, 2012). Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.
Issues on Review: 1. The Court of Appeals erred in failing to presume prejudice resulting from the wrongful admission of the testimony of Dr. Kevin Garvin, as is required under Nebraska law.
2. The Court of Appeals erred in finding that Dr. Garvin's testimony was cumulative of or substantially similar to other evidence and therefore harmless, because his testimony essentially served as an admission by Simon given Dr. Garvin's unique status and credibility as the Simon's personal treating physician. 3. The Court of Appeals erred by mischaracterizing the record in stating that the issues on appeal concerned a "battle of experts," because Dr. Garvin was not testifying as an expert when he gave the wrongfully admitted testimony regarding needle length.
4. The Court of Appeals erred in finding that Plaintiff waived objections to Defense counsel's repeated order-in-limine violations by withholding objections during closing argument.