Huber v. Rohrig

R ebekah hubeR, appellant, v.
kent e. RohRig , appellee .
791 N.W.2d 590
Filed December 3, 2010. 	No. S-10-002.
1. Motions for Mistrial: Appeal and Error. A motion for mistrial is directed to the
discretion of the trial court, and its ruling will not be disturbed on appeal absent
a showing of abuse of that discretion.
2. Judges: Recusal: Appeal and Error. A motion to recuse for bias or partiality is
initially entrusted to the discretion of the trial court, and the trial court’s ruling
will be affirmed absent an abuse of that discretion.
3. Pretrial Procedure: Appeal and Error. On appellate review, decisions regarding
discovery are generally reviewed under an abuse of discretion standard.
4. Judges: Words and Phrases. A judicial abuse of discretion exists when reasons
or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted for disposition.
5. Motions for Mistrial. A mistrial is appropriate when an event occurs during the
course of a trial which is of such a nature that its damaging effects would prevent
a fair trial.
6. ____. Events which may require the granting of a mistrial include egregiously
prejudicial statements of counsel, the improper admission of prejudicial evidence,
and the introduction to the jury of incompetent matters.
7. Judges: Recusal. A recusal motion is initially addressed to the discretion of the
judge to whom the motion is directed.
8. ____: ____. A trial judge should recuse himself or herself when a litigant dem-
onstrates that a reasonable person who knew the circumstances of the case would
question the judge’s impartiality under an objective standard of reasonableness,
even though no actual bias or prejudice was shown.
9. Trial: Evidence. The concept of “opening the door” is a rule of expanded rele-
vancy which authorizes admitting evidence which otherwise would have been
irrelevant in order to respond to (1) admissible evidence which generates an issue
or (2) inadmissible evidence admitted by the court over objection.
10. ____: ____. “Opening the door” is a contention that competent evidence which
was previously irrelevant is now relevant through the opponent’s admission of
other evidence on the same issue.
11. Appeal and Error. Error that does not prejudice the party does not provide
grounds for relief on appeal.
12. Pleadings: Rules of the Supreme Court: Good Cause: Pretrial Procedure.
Generally, the requirements of “in controversy” and “good cause” contained in
Neb. Ct. R. Disc. § 6-335(a) are not satisfied by mere conclusory allegations of
pleadings, but are fulfilled by a movant’s affirmative showing that the condition
to be verified by the requested examination, physical or mental, is actually con-
troverted and that good cause exists for ordering the examination.
13. Rules of the Supreme Court: Pretrial Procedure: Affidavits. To obtain discov-
ery under Neb. Ct. R. Disc. § 6-335(a), the requisite showing does not require
the movant to prove the movant’s case on the merits at an evidentiary hearing,
868 	280 NEbRASkA REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

but may include a showing by an appropriate affidavit or other suitable infor-
mation presented to a court whereby the court can perform its function under
§ 6-335(a).
14. Actions: Negligence: Rules of the Supreme Court: Pretrial Procedure. An
allegation of negligence in a personal injury action does not put a party’s mental
condition in controversy for purposes of Neb. Ct. R. Disc. § 6-335(a).
15. Courts: Rules of the Supreme Court: Pretrial Procedure. When requesting
a physical or mental examination, a movant’s ability or inability to obtain the
desired information without the requested examination is relevant to a court’s
decision whether to order an examination under Neb. Ct. R. Disc. § 6-335(a).
16. Trial: Evidence: Juries. A motion in limine is but a procedural step to prevent
prejudicial evidence from reaching the jury. It is not the purpose of a motion in
limine to obtain a final ruling upon the ultimate admissibility of the evidence.
17. ____: ____: ____. A motion in limine’s purpose is to prevent the proponent of
potentially prejudicial matter from displaying it to the jury, making statements
about it before the jury, or presenting the matter to the jury in any manner until
the trial court has ruled upon its admissibility in the context of the trial itself.
18. Trial: Courts. A court cannot err with respect to a matter not submitted to it
for disposition.
Appeal from the District Court for Douglas County: John D.
haRtigan, JR., Judge. Affirmed.
Maren Lynn Chaloupka, of Chaloupka, Holyoke, Hofmeister,
Snyder & Chaloupka, for appellant.
David C. Mullin and Elizabeth A. Culhane, of Fraser Stryker,
p.C., L.L.O., for appellee.
heavican, 	c.J., 	WRight, 	connolly, 	geRRaRD, 	Stephan,
MccoRMack, and M illeR-leRMan, JJ.
M illeR-leRMan, J.
I. NATURE OF THE CASE
This case involves a car accident in which Rebekah Huber,
appellant, was a passenger in a vehicle struck by a vehicle
driven by kent E. Rohrig, appellee. Huber filed a complaint
against Rohrig in the district court for Douglas County alleg-
ing that his negligence caused the accident and seeking dam-
ages for injuries she alleged resulted from the accident. Rohrig
admitted liability. During discovery, Rohrig moved to compel
a clinical psychological examination of Huber. Huber opposed
the motion for various reasons, including the assertion that
HUbER v. ROHRIG 	869
Cite as 280 Neb. 868

Huber’s psychological well-being was not in controversy. The
district court granted the motion.
A jury trial was conducted on the issue of damages. After
1 day of trial, the district court granted Rohrig’s motion for
mistrial and dismissed the jury. The trial judge declined to
recuse himself before the second trial. Huber sought and was
denied access to the juror questionnaires prior to the second
trial. The second trial was conducted, and a judgment in favor
of Huber was entered awarding damages in an amount less than
she sought.
Huber appeals from this second trial and assigns numerous
errors. For the reasons explained below, we affirm.
II. STATEMENT OF FACTS
On January 12, 2006, Huber was riding as a passenger in a
vehicle struck by a vehicle driven by Rohrig. After the acci-
dent, Rohrig was cited for driving while intoxicated. On June
21, 2007, Huber filed this action against Rohrig in which she
alleged that his negligence caused the accident and sought
damages therefor. In the course of proceedings, Huber made
clear that her damages were for injuries consisting of chronic
neck pain and cognitive deficits consistent with postconcussion
syndrome. On August 8, 2008, Rohrig filed an amended answer
and admitted liability.
During discovery, on August 22, 2008, Rohrig filed a motion
pursuant to Neb. Ct. R. Disc. § 6-335(a) (Rule 35) to com-
pel Huber to submit to a psychological clinical examination
(hereinafter psychological examination or clinical examina-
tion). based on her attorney’s advice, Huber had previously
cooperated with Rohrig’s request that she submit to neuropsy-
chological testing related to the physical origin of her claimed
damages, but had refused to complete the psychological portion
of the examination. It was Huber’s position that a psychologi-
cal clinical examination was not proper under Rule 35, because
Huber’s mental health was not “in controversy” and Rohrig had
not shown “good cause” for needing the clinical portion of the
examination. Huber noted that Rohrig had been given access to
Huber’s medical and educational records, the transcript of her
deposition, and the results of a neuropsychological examination
870 	280 NEbRASkA REpORTS

performed by an expert retained by Huber. The court granted
Rohrig’s motion to compel and ordered that Huber complete
the clinical portion of the examination.
Also during discovery, Huber took the deposition of Rohrig’s
medical expert, Dr. Charles Taylon. The deposition was not
completed, but Taylon agreed to testify at trial. Huber’s motion
to compel the completion of Taylon’s deposition was denied.
Shortly before the first of two trials began, Rohrig filed a
motion in limine seeking to bar any mention or evidence of the
fact that he was intoxicated when his vehicle struck the vehicle
in which Huber was riding, as well as evidence that he had pre-
viously been arrested for drunk driving. Rohrig contended that
because he had admitted liability, this evidence and evidence of
alcohol use generally were irrelevant. The court sustained the
motion in limine.
The first trial commenced in July 2009. After a day of trial,
the court sustained Rohrig’s motion for mistrial based on
Huber’s counsel’s references to alcohol use during both voir
dire and opening statements, in violation of the order in limine.
before the second trial was held, Huber moved to recuse the
trial judge and the motion was denied.
before the start of the second trial, Huber filed a motion enti-
tled “plaintiff’s Motion for production of Juror Questionnaires
to Counsel” in which she requested an opportunity to review
the juror questionnaires. The court denied the motion.
The second trial began on November 16, 2009. During voir
dire and opening statements, Rohrig’s counsel made some
complimentary remarks regarding his client. At trial, Rohrig’s
expert, who had been authorized by the court to conduct the
psychological examination of Huber, testified. Huber did not
object to the substance of the expert’s opinion testimony. The
expert testified that based on the personality assessments he
had performed, Huber has a tendency to magnify physical
symptomology and makes an effort to present herself as having
memory problems and to convince people she has a closed-
head injury when in fact she does not. He stated that Huber
has had personality problems and poor coping mechanisms for
quite some time. The written report of Rohrig’s expert, which
Huber’s counsel entered into evidence on cross-examination,
HUbER v. ROHRIG 	871
Cite as 280 Neb. 868

contained the expert’s opinions and concluded by diagnosing
Huber with “Major Depression, by History” and “personality
Disorder, Not Otherwise Specified, with Narcissistic, Histrionic,
and Obsessive-Compulsive Features.”
At trial, Huber put into evidence exhibits which showed that
she had incurred various medical expenses. The exhibits were
provided to the jury for deliberations.
After deliberations, the jury returned a verdict form stating
that “[w]e, the jury duly impaneled and sworn . . . do find for
the plaintiff and award damages in the amount of $24,400,”
an amount less than the total contained on the face of Huber’s
exhibits. Judgment was entered, and Huber appeals.
III. ASSIGNMENTS OF ERROR
Huber assigns as error, restated and summarized, that the
district court erred when it (1) granted Rohrig’s motion for
mistrial at the first trial, (2) denied Huber’s motion for recu-
sal, (3) excluded evidence and did not allow impeachment of
Rohrig’s character after his counsel placed Rohrig’s character
in issue, (4) denied Huber’s motion to compel the completion of
Taylon’s deposition, (5) denied Huber’s motion for production
of the juror questionnaires, and (6) granted Rohrig’s motion to
compel Huber to complete the clinical interview portion of the
neuropsychological examination.
IV. STANDARDS OF REVIEW
[1] A motion for mistrial is directed to the discretion of
the trial court, and its ruling will not be disturbed on appeal
absent a showing of abuse of that discretion. See Sturzenegger
v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 N.W.2d
406 (2008).
[2] A motion to recuse for bias or partiality is initially
entrusted to the discretion of the trial court, and the trial court’s
ruling will be affirmed absent an abuse of that discretion. Mihm
v. American Tool, 11 Neb. App. 543, 664 N.W.2d 27 (2003).
[3,4] On appellate review, decisions regarding discovery
are generally reviewed under an abuse of discretion standard.
Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010).
A judicial abuse of discretion exists when reasons or rulings of
a trial judge are clearly untenable, unfairly depriving a litigant
872 	280 NEbRASkA REpORTS

of a substantial right and denying just results in matters sub-
mitted for disposition. Id.
V. ANALYSIS
1. the D iStRict couRt D iD not eRR When it gRanteD
RohRig’S Motion foR M iStRial
because of comments made by Huber’s attorney during
voir dire and opening statements, the district court granted
a mistrial. Huber claims that the district court erred when it
granted Rohrig’s motion for mistrial, because the effects of
the challenged comments would not prevent a fair trial. Rohrig
responds by arguing that the objectionable comments were
prejudicial and that it was not an abuse of discretion to grant
the motion and order a new trial. We agree with Rohrig.
[5,6] A motion for mistrial is directed to the discretion of the
trial court, and its ruling will not be disturbed on appeal absent
a showing of abuse of that discretion. Sturzenegger, supra. A
mistrial is appropriate when an event occurs during the course
of a trial which is of such a nature that its damaging effects
would prevent a fair trial. Genthon v. Kratville, 270 Neb. 74,
701 N.W.2d 334 (2005). Events which may require the grant-
ing of a mistrial include egregiously prejudicial statements of
counsel, the improper admission of prejudicial evidence, and
the introduction to the jury of incompetent matters. See id. An
abuse of discretion means that the reasons for the ruling are
untenable and unfairly deprive a litigant of a substantial right
and deny a just result in the matter submitted for disposition.
See Kocontes, supra.
before the trial proceedings began, Rohrig filed a motion
in limine seeking to exclude any mention of alcohol use at the
trial. The motion was granted. During voir dire, Huber’s coun-
sel questioned the potential jurors about whether they were
involved with the Mothers Against Drunk Driving organization
and whether any of them abstain from alcohol. Rohrig moved
for a mistrial based on a violation of the order in limine. The
motion was denied. During opening statements, Huber’s coun-
sel paraphrased one of the steps from the principles urged by
Alcoholics Anonymous and introduced her remarks by stat-
ing “as one organization put it.” Following this statement,
HUbER v. ROHRIG 	873
Cite as 280 Neb. 868

Rohrig renewed his motion for mistrial and the court granted
the motion.
The court explained its rationale for granting the motion.
The court stated that Huber’s counsel’s several references to
alcohol created a narrative that this was a drunk driving case
rather than a damage case and that the commentary violated the
court’s order in limine. It is clear the district court determined
that the references to alcohol would have a significantly preju-
dicial impact on the jury. Given the context in which the ruling
occurred, such determination was reasonable. See Sturzenegger
v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 N.W.2d
406 (2008). The ruling of the district court was not untenable.
Accordingly, we conclude that the district court did not err
when it granted Rohrig’s motion for mistrial.
2. the D iStRict couRt D iD not eRR When it D enieD
hubeR’S Motion foR R ecuSal
Huber claims that the district court erred when it denied
her motion for the judge to recuse himself. Huber supported
her motion for recusal with the affidavit of her counsel. The
affidavit asserted that the basis for the motion was the grant of
the mistrial and Huber’s counsel’s belief that the district court
judge was biased in favor of Rohrig due to certain rulings.
[7] A recusal motion is initially addressed to the discretion
of the judge to whom the motion is directed. State v. Hubbard,
267 Neb. 316, 673 N.W.2d 567 (2004). A motion requesting
a judge to recuse himself or herself on the ground of bias or
prejudice is addressed to the discretion of the judge, and an
order overruling such a motion will be affirmed on appeal
unless the record establishes bias or prejudice as a matter
of law. See Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d
898 (2002).
[8] In discussing bias or prejudice as a matter of law, we
have stated that a trial judge should recuse himself or herself
when a litigant demonstrates that a reasonable person who
knew the circumstances of the case would question the judge’s
impartiality under an objective standard of reasonableness,
even though no actual bias or prejudice was shown. Id. Thus,
we have concluded that a judge should have recused herself
874 	280 NEbRASkA REpORTS

in subsequent proceedings where she initially made a cus-
tody determination when no evidence had yet been presented
on the issue. Id. It has also been concluded that a Workers’
Compensation Court trial judge should have recused himself
where he recited facts about the employer which were not yet
in the record. Mihm v. American Tool, 11 Neb. App. 543, 664
N.W.2d 27 (2003).
With respect to recusal, the U.S. Supreme Court has stated
that “judicial rulings alone almost never constitute a valid basis
for a bias or partiality motion.” Liteky v. United States, 510 U.S.
540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994). The Court
has also observed that a judge’s ordinary efforts at courtroom
administration cannot be the basis for bias or partiality. Id.
In the instant case, the evidence submitted in support of
Huber’s motion for recusal was the affidavit authored by
Huber’s counsel. In the affidavit, Huber’s counsel complained
of several rulings against Huber, and asserted that these rulings
and comments by the judge about the rulings showed the judge
was biased in favor of Rohrig’s effort to remove alcohol use
from the case and that as a result, the judge should be recused
from the second trial. The ruling on the mistrial was featured
in the affidavit.
As we have explained, the record shows that the trial judge’s
ruling on the motion for mistrial was based on his conclusion
that Huber’s counsel violated the order in limine excluding any
mention of drunk driving and was effectively bringing liability
into the action after Rohrig had admitted liability. Allegations
of unfavorable rulings alone almost never establish that a judge
should be recused. Id. In this case, a reasonable person who
knew of the circumstances would not question the trial judge’s
impartiality. See Gibilisco, supra. Accordingly, we conclude
that the district court judge did not abuse his discretion when
he denied the motion for recusal.
3. the D iStRict couRt D iD not eRR When it excluDeD
eviDence anD pRohibiteD the iMpeachMent
of RohRig’S chaRacteR
Huber claims Rohrig’s counsel opened the door to Rohrig’s
character when counsel stated during voir dire that Rohrig
HUbER v. ROHRIG 	875
Cite as 280 Neb. 868

was a “wonderful” veterinarian and that “no one loves pets
more than Dr. Rohrig,” and stated in his opening statement
that he was pleased to be able to represent Rohrig at trial.
Huber claims that she should have been allowed to impeach
Rohrig’s character and that the district court erred when it
excluded certain evidence and prohibited Huber from impeach-
ing Rohrig’s character.
[9,10] The concept of “opening the door” is a rule of
expanded relevancy which authorizes admitting evidence which
otherwise would have been irrelevant in order to respond
to (1) admissible evidence which generates an issue or (2)
inadmissible evidence admitted by the court over objection.
Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb.
327, 754 N.W.2d 406 (2008). The rule is most often applied
to situations where evidence adduced or comments made by
one party make otherwise irrelevant evidence highly relevant
or require some response or rebuttal. Id. “Opening the door”
is a contention that competent evidence which was previously
irrelevant is now relevant through the opponent’s admission of
other evidence on the same issue. See id.
The admission or exclusion of evidence is generally reviewed
for an abuse of discretion. See id. We determine that Rohrig
did not “open the door” to his character and that, therefore,
the court did not abuse its discretion when it denied Huber’s
request to admit character evidence. The statements outlined
above were not sufficient to put character at issue in this trial.
The issue at trial was the amount of damages owed to Huber.
The statements that Rohrig liked pets and that his attorney was
pleased to represent him did not make Rohrig’s character rele-
vant or require some response or rebuttal. Rohrig’s character
did not become relevant to the jury’s decision to determine
the damages Huber had incurred. Indeed, for completeness,
we note that Rohrig did not testify. Accordingly, the district
court did not err when it excluded evidence offered to impeach
Rohrig’s character.
4. the D iStRict couRt D iD not eRR When it D enieD
hubeR’S Motion to coMpel the D epoSition of taylon
Huber claims that the district court erred when it denied
her motion to compel the completion of Taylon’s videotaped
876 	280 NEbRASkA REpORTS

deposition testimony. During discovery, Huber did not com-
plete the deposition of Taylon, Rohrig’s medical expert, evi-
dently due to Taylon’s schedule. When the deposition could not
be rescheduled, Taylon agreed to appear at the trial and testify.
Notwithstanding Taylon’s scheduled appearance at trial, Huber
moved to compel the completion of the deposition. The motion
was overruled.
On appellate review, decisions regarding discovery are gen-
erally reviewed under an abuse of discretion standard. Kocontes
v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010). A judicial
abuse of discretion exists when reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted
for disposition. Id. The party asserting error in a discovery rul-
ing bears the burden of showing that the ruling was an abuse
of discretion. Id.
Although we understand Huber’s interest in a completed
pretrial deposition, Huber has failed to show that the court’s
denial of her motion to compel deprived her of a substantial
right. Taylon testified at trial, and Huber was afforded the
opportunity to—and did in fact—cross-examine him. Huber
has not established that her inability to depose Taylon deprived
her of a substantial right. Accordingly, the district court did not
err when it denied Huber’s motion to compel.
5. the D iStRict couRt eRReD When it D enieD hubeR’S
R equeSt foR the JuRoR queStionnaiReS
Huber claims that the district court erred when it denied her
request for the juror questionnaires, in violation of Neb. Rev.
Stat. § 25-1629 (Reissue 2008). At trial, Huber explained that
she wanted access to the questionnaires as an aid to effective
voir dire and jury selection. At oral argument, counsel for
Huber clarified that the questionnaires she requested were the
questionnaires completed by jurors pursuant to Neb. Ct. R.
§ 6-1003.
Section 25-1629 states:
The jury commissioner shall immediately upon deriv-
ing the proposed juror list mail a juror qualification form
to each proposed juror pursuant to section 25-1629.01
and investigate the persons whose names are found on
HUbER v. ROHRIG 	877
Cite as 280 Neb. 868

the list. If he or she finds that any one of them is not
possessed of the qualifications of petit jurors as set forth
in section 25-1601 or is excluded by the terms of section
25-1601, he or she shall strike such name from the list
and make a record of each name stricken, which record
shall be kept in his or her office subject to inspection by
the court and attorneys of record in cases triable to a jury
pending before the court, under such rules as the court
may prescribe. The list as thus revised shall constitute
the list from which petit jurors shall be selected, until
such list shall have been exhausted in the manner herein-
after set forth or until otherwise ordered by the judge or
judges. Unless otherwise ordered by the judge or judges,
the jury commissioner shall immediately upon complet-
ing the revision of the list, in the presence of a judge
for such district, select at random the names of eighty
persons possessing the qualifications for grand jurors as
set out in section 25-1601. When no grand jury list is
selected, the judge or judges may at any time order the
selecting of a grand jury list. This list shall constitute the
list from which grand jurors shall be chosen. Any judge
of the district court shall upon the request of any person
entitled to access to the list of names stricken, if satisfied
that such request is made in good faith, direct the jury
commissioner to appear before the judge at chambers and
in the presence of the complaining person state his or her
reasons for striking the name specified in the request.
Section 6-1003 provides:
The CONFIDENTIAL JUROR INFORMATION sec-
tion of the Nebraska Juror Qualification Form, part VII,
shall be detachable and shall be removed by the clerks of
the district and county courts or jury commissioners and
stored in a confidential manner by such clerk or commis-
sioner until the end of the jury term. No one shall be per-
mitted access to these detached sections except as set forth
in this rule. The clerk or commissioner shall deliver the
detached confidential information to an approved research
agent of the Nebraska Supreme Court. The Nebraska
Minority and Justice Implementation Committee (NMJIC)
878 	280 NEbRASkA REpORTS

and the Nebraska Racial Justice Initiative (NRJI) have
been approved by the Nebraska Supreme Court as such
research agents. The confidential juror information may
also be maintained, stored, and transmitted to the approved
research agent by electronic means by any court which
possesses such capabilities.
by its language, § 25-1629 does not explicitly require that
Huber be given access to the juror questionnaires. However,
based on the court rule quoted above regarding the juror
questionnaires, we conclude that an opportunity to review the
questionnaires such as Huber sought is contemplated. See Neb.
Ct. R. §§ 6-1001 to 6-1004. In particular, we refer to § 6-1003,
which provides that part VII of the questionnaire should be
detachable and maintained in a confidential manner. Given the
language explicitly making part VII confidential, it logically
follows that the remainder of the questionnaire is not confiden-
tial. Accordingly, we conclude that the information other than
part VII should be made available upon request to an attorney
involved in the jury trial.
Our understanding of the Nebraska provisions referred to
above is consistent with the reasoning of other courts. Other
courts that have addressed when such questionnaires can be
given to the media have concluded that voir dire begins with
the juror questionnaires and that unless good cause is estab-
lished, voir dire should be open to the public. See, e.g., Press-
Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 104
S. Ct. 819, 78 L. Ed. 2d 629 (1984) (presumptive right of
access under First Amendment extends to voir dire examina-
tion of prospective jurors); State ex rel. Beacon Journal v.
Bond, 98 Ohio St. 3d 146, 781 N.E.2d 180 (2002) (explaining
that because purpose behind juror questionnaires is merely to
expedite examination of prospective jurors, it follows that such
questionnaires are part of voir dire process); Copley Press v.
San Diego County, 228 Cal. App. 3d 77, 89, 278 Cal. Rptr.
443, 451 (1991) (“[t]he fact that the questioning of jurors was
largely done in written form rather than orally is of no consti-
tutional import”).
[11] based on the foregoing, the district court erred when
it denied Huber’s request to review the juror questionnaires.
HUbER v. ROHRIG 	879
Cite as 280 Neb. 868

However, error that does not prejudice the party does not pro-
vide grounds for relief on appeal. See Agri Affiliates, Inc. v.
Bones, 265 Neb. 798, 660 N.W.2d 168 (2003). We determine
that Huber was not prejudiced and that the ruling constituted
harmless error, because Huber was able to conduct in-person
voir dire of the jurors and was able to obtain information
comparable to that provided on the juror questionnaires.
Therefore, although the district court erred when it denied
Huber access to the juror questionnaires, this ruling was
harmless error.
6. hubeR WaiveD heR challenge to RohRig’S expeRt’S
teStiMony R egaRDing the R eSultS of the pSychological
exaMination When She D iD not obJect to the
intRoDuction of the teStiMony at tRial
Huber claims that the district court erred when it granted
Rohrig’s Rule 35 motion to compel Huber to submit to the
psychological clinical interview portion of the neuropsycho-
logical examination with Rohrig’s expert. Rule 35 reads in part
as follows:
Order for Examination. When the mental or physical
condition . . . of a party . . . is in controversy, the court
in which the action is pending may order the party to sub-
mit to a physical or mental examination by one or more
physicians, or other persons licensed or certified under
the laws to engage in a health profession, or to produce
for examination the person in his or her custody or legal
control. The order may be made only on motion for good
cause shown and upon notice to the person to be exam-
ined and to all parties and shall specify the time, place,
manner, conditions, and scope of the examination and the
person or persons by whom it is to be made.
Huber contends that her mental condition was not “in contro-
versy” and that Rohrig did not show “good cause” for request-
ing the examination. Huber claims that the damages she sought
were based on cognitive deficits, which included difficulties
with memory and concentration, but that the damages were not
based on emotional pain and suffering. Huber contends that
the decision not to request damages based on emotional pain
880 	280 NEbRASkA REpORTS

and suffering was not an oversight but an intentional decision
made in part to avoid an indepth psychological examination
by Rohrig.
Huber directs our attention to a portion of the record quoted
below made during her deposition in which counsel agreed to
the parameters of Huber’s damages claim.
[Rohrig’s counsel:] Were there any, I guess, psycho-
logical symptoms that you’ve had to deal with since the
accident that you would relate to the accident?
[Huber’s counsel]: Hang on a second. Let me interpose
an objection. You’re aware that our Complaint does not
include a claim for emotional distress, aren’t you?
[Rohrig’s 	counsel]: 	Not 	off 	the 	top 	of 	my 	head,
I wasn’t.
[Huber’s counsel]: We have not included a claim for
emotional distress.
[Rohrig’s counsel]: Well, let me ask you as long as I
have — I mean, in terms of — I’m running into things like
anxiety, things like that in the medical records. I mean,
are those claims you guys are going to be making?
. . . .
[Huber’s counsel]: The head injury symptoms that have
to do with concentration, memory those things like that
— I don’t think you’re seeing that much anxiety in the
post-accident records. The — yes, we’re going to be look-
ing at the head injury symptoms that have to do with her
memory, concentration, stuff that came up in [Huber’s
expert’s] evaluation that we talked about.
[Rohrig’s counsel]: Okay.
[Huber’s counsel]: but as far as anxiety, depression,
pTSD, no.
[Rohrig’s counsel]: Well if we’re clear that there’s not
going to be claims made for those, I don’t need to ask
anything about them.
[Huber’s counsel]: Right, and I don’t know a neater
way to make a line on that other than to say that —
. . . .
[Huber’s counsel]: . . . I don’t know what is the appro-
priate term.
HUbER v. ROHRIG 	881
Cite as 280 Neb. 868

[Rohrig’s counsel]: I suppose we could say the only
mental symptoms would be the cognitive —
[Huber’s 	counsel]: 	Thank 	you, 	as 	opposed 	to
emotional.
In opposing Rohrig’s Rule 35 motion, Huber directed the
district court to this exchange and the fact that Rohrig had
taken Huber’s deposition and had the transcript thereof. Huber
also advised the district court of the fact that Rohrig had access
to Huber’s medical and educational records.
Rohrig asserts that Huber’s mental condition was “in con-
troversy” and that he established “good cause” to perform the
clinical examination. Rohrig’s Rule 35 showing consisted of
arguments and a letter by Huber’s counsel. Rohrig argues that
the district court did not err in compelling Huber to complete
the clinical interview portion of the neuropsychological exami-
nation because her mental condition was “in controversy.”
In support of this contention, Rohrig points to the portion
of Huber’s complaint that alleged she experienced pain and
suffering, including mental anguish. Rohrig also argues that
Huber’s claim that she suffered a closed-head injury brought
her mental condition into controversy. Rohrig argues that he
established “good cause” for requesting the evaluation based
on the fact that Huber’s own expert completed a neuropsycho-
logical evaluation, including a psychological clinical interview.
Rohrig argues that to be on equal footing with Huber, it was
necessary that he have his own expert perform a psychologi-
cal examination.
[12] We recognize that it is possible that the determination
that a physical or mental condition is “in controversy” and
that “good cause” exists for an examination may be based on
the pleadings alone. However, generally, the requirements of
“in controversy” and “good cause” contained in Rule 35 are
not satisfied by mere conclusory allegations of pleadings, but
are fulfilled by a movant’s affirmative showing that the condi-
tion to be verified by the requested examination, physical or
mental, is actually controverted and that “good cause” exists
for ordering the examination. See County of Hall ex rel. Tejral
v. Antonson, 231 Neb. 764, 437 N.W.2d 813 (1989). See,
also, Schlagenhauf v. Holder, 379 U.S. 104, 85 S. Ct. 234,
882 	280 NEbRASkA REpORTS

13 L. Ed. 2d 152 (1964); Neuman v. Neuman, 377 A.2d 393
(D.C. 1977).
[13] To obtain discovery under Rule 35, the requisite show-
ing does not require the movant to prove the movant’s case
on the merits at an evidentiary hearing, but may include a
showing by an appropriate affidavit or other suitable informa-
tion presented to a court whereby the court can perform its
function under Rule 35. See, Schlagenhauf, supra; Anderson
v. Anderson, 470 So. 2d 52 (Fla. App. 1985). For the reasons
recited below, we determine that the district court abused its
discretion when it granted Rohrig’s Rule 35 motion. However,
we also conclude that because Huber did not object at trial to
the testimony and written evidence surrounding the results of
the examination, she did not preserve the pretrial ruling for
appellate review.
(a) “In Controversy” Requirement
[14] In Schlagenhauf, the U.S. Supreme Court stated that a
routine allegation of negligence in a personal injury action does
not put a party’s mental condition “in controversy” for pur-
poses of the federal counterpart to our Rule 35. Various courts
have addressed when a party’s mental condition becomes “in
controversy” for Rule 35 purposes. Courts commonly con-
clude that plaintiffs can be ordered to undergo mental condi-
tion examinations where one or more of the following claims
are present:
(1) a cause of action for intentional or negligent inflic-
tion of emotional distress; (2) an allegation of a specific
mental or psychiatric injury or disorder; (3) a claim of
unusually severe emotional distress; (4) plaintiff’s offer of
expert testimony to support a claim of emotional distress;
and/or (5) plaintiff’s concession that his or her mental
condition is in controversy within the meaning of [Fed.
R. Civ. p.] 35.
Stuff v. Simmons, 838 N.E.2d 1096, 1102 (Ind. App. 2005). See,
also, Turner v. Imperial Stores, 161 F.R.D. 89 (S.D. Cal. 1995);
Gepner v. Fujicolor Processing, 637 N.W.2d 681 (N.D. 2001).
In the course of these proceedings, Huber has not put her
mental condition at issue, and Rohrig’s claim that Huber’s
HUbER v. ROHRIG 	883
Cite as 280 Neb. 868

mental condition is “in controversy” is not supported by the
record. Other than Huber’s generalized claims for pain and
suffering contained in the complaint, Huber has not made a
specific request for damages based on emotional injuries, and
we are mindful that such general claims in pleadings are ordi-
narily not sufficient grounds to put one’s mental condition “in
controversy” for purposes of Rule 35. See, e.g., Schlagenhauf,
supra; Stuff, supra.
In the course of these proceedings, Huber indicated that her
cognitive condition, such as her memory and ability to learn
and concentrate, was “in controversy”; however, she specifi-
cally excluded from the action any damages based on her emo-
tional well-being and psychological health. At Huber’s deposi-
tion, the parties acknowledged a distinction between cognitive
and emotional symptoms and it was made clear that Huber was
not claiming damages for emotional distress or anxiety. by
placing her cognitive abilities at issue, Huber did not place all
aspects of her mental health “in controversy.”
Huber claimed certain cognitive issues resulted from the
physical trauma of the accident, and she sought damages
for those injuries. Events that occurred many years ago in
Huber’s past, which were the subject of the psychological
clinical examination ordered by the court, were not relevant
to the damages occasioned by the accident sought in this case.
Huber’s mental condition as understood under Rule 35 was not
“in controversy,” and the district court erred to the extent it
found to the contrary.
(b) “Good Cause” Requirement
[15] The U.S. Supreme Court has explained that in deter-
mining whether there is good cause for an evaluation,
“‘the court must decide . . . in every case, whether the
motion requesting . . . the making of a physical or mental
examination adequately demonstrates good cause. The
specific requirement of good cause would be meaningless
if good cause could be sufficiently established by merely
showing that the desired materials are relevant, for the
relevancy standard has already been imposed by [Fed.
R. Civ. p.] 26(b). Thus, by adding the words “. . . good
884 	280 NEbRASkA REpORTS

cause . . . ,” the Rules indicate that there must be greater
showing of need under [Rule 35] than under the other
discovery rules.’”
Schlagenhauf v. Holder, 379 U.S. 104, 117-18, 85 S. Ct. 234,
13 L. Ed. 2d 152 (1964). The Court added that “what may
be good cause for one type of examination may not be so for
another.” Id., 379 U.S. at 118. A movant’s ability or inability to
obtain the desired information without the requested examina-
tion is also relevant to a court’s decision whether to order an
examination under Rule 35. See, e.g., Acosta v. Tenneco Oil
Co., 913 F.2d 205 (5th Cir. 1990) (finding good cause was not
shown where defendant already had information it sought to
support its position); Stanislawski v. Upper River Services, Inc.,
134 F.R.D. 260 (D. Minn. 1991) (concluding good cause was
not shown to justify vocational examination where defendant
had been allowed access to all of plaintiff’s medical records,
had deposed plaintiff, and had been provided with results of
tests performed by plaintiff’s vocational expert).
Rohrig claims that “good cause” for requesting the psy-
chological clinical examination of Huber was shown, based
primarily on the fact that Huber’s expert had completed a
neuropsychological examination that included a psychological
clinical interview. Rohrig posits that without Rule 35 relief, he
would be denied a level playing field if his expert were denied
an opportunity to perform a psychological examination and
Huber’s expert’s psychological examination were to come into
evidence. However, the solution for Rohrig’s dilemma was not
to gain permission for an unwarranted examination, but, rather,
to object to the attempted admission of Huber’s expert’s psy-
chological examination at trial and, if unavailing, to appeal or
cross-appeal the ruling admitting such evidence.
It was Rohrig’s burden to demonstrate before the district
court that he had “good cause” for seeking the Rule 35 exami-
nation. However, as Huber noted at the hearing, Rohrig did
not proffer evidence other than a letter from Huber’s counsel
stating that Huber did not intend to submit to the psychological
interview. Rohrig did not provide evidence such as an affida-
vit from his expert that the clinical interview was critical to
completion of the cognitive testing. Nor was there evidence
HUbER v. ROHRIG 	885
Cite as 280 Neb. 868

that relying on the medical and other reports supplied to Rohrig
by Huber would be insufficient in completing an evaluation of
her cognitive abilities.
At Huber’s deposition, the parties agreed that Huber’s emo-
tional health was not at issue and that the damages sought by
Huber related to her cognitive deficits, which were clarified as
memory loss and problems with concentration. by limiting the
damages claim, Huber sought to avoid a psychological exami-
nation. Courts have sometimes characterized a psychological
examination as a “‘drastic measure.’” U.S. v. DeNoyer, 811
F.2d 436, 439 (8th Cir. 1987).
Huber claimed in this case that her cognitive issues resulted
from the physical impact she suffered in the accident. Huber
supplied Rohrig with the medical records in support of her
case, including the neuropsychological examination completed
by her expert and her educational records. Given the damages
sought by Huber, Rohrig was warranted in obtaining his own
testing of Huber’s cognitive abilities; however, he did not
establish “good cause” for an extensive psychological exami-
nation of Huber in general and for an examination delving
into Huber’s childhood in particular. Accordingly, we conclude
that the grant of the motion to compel the examination under
Rule 35 was in error, because Rohrig did not establish that
Huber’s psychological health was “in controversy” and did
not establish that he had “good cause” for the psychologi-
cal examination.
(c) Waiver
Although we conclude that the district court erred when it
granted Rohrig’s pretrial Rule 35 motion to compel, because
Huber did not object to the admission of the evidence con-
taining the results of the clinical examination by Rohrig’s
expert at trial, she has waived consideration of this ruling
on appeal.
In Olson v. Sherrerd, 266 Neb. 207, 663 N.W.2d 617 (2003),
we considered the circumstance where a trial court overruled
a discovery-related pretrial motion that sought to exclude evi-
dence. We stated that to preserve the alleged error for appeal,
the movant must object when the particular evidence which
886 	280 NEbRASkA REpORTS

was sought to be excluded by the motion is offered during
trial. We stated that if the movant does not object when the
evidence is offered at trial, the issue is not preserved for appel-
late review. Id.
[16,17] In Olson, we likened the pretrial motion seeking to
exclude evidence to a motion in limine and explained that the
motion in limine is but a procedural step to prevent prejudicial
evidence from reaching the jury. We explained that it is not the
purpose of a motion in limine to obtain a final ruling upon the
ultimate admissibility of the evidence. See id., citing State v.
Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002). Rather, its
purpose is to prevent the proponent of potentially prejudicial
matter from displaying it to the jury, making statements about
it before the jury, or presenting the matter to the jury in any
manner until the trial court has ruled upon its admissibility in
the context of the trial itself. See Olson, supra. We concluded
in Olson that these motion in limine principles applied to a
pretrial motion attempting to exclude evidence as a discovery
sanction, and we find that these same principles apply to the
instant case.
In this case, after the grant of the motion to compel, Huber
did not seek a protective or other order to prevent the infor-
mation obtained through the clinical psychological examina-
tion from being displayed to the jury. At trial, Huber did not
object to Rohrig’s expert’s testimony regarding the results of
his psychological examination of Huber. For completeness, we
note that the record shows Huber rather than Rohrig offered
into evidence the neuropsychological report of Rohrig’s expert,
including the psychological evaluation portion of the exami-
nation. Further, during cross-examination, Huber questioned
Rohrig’s expert in depth, thereby “displaying” certain of the
most sensitive aspects of his report before the jury.
[18] We have stated:
It is well established that if, when inadmissible evidence is
offered, the party against whom such evidence is offered
consents to its introduction, or fails to object or to insist
upon a ruling on an objection to the introduction of the
evidence, and otherwise fails to raise the question as to
HUbER v. ROHRIG 	887
Cite as 280 Neb. 868

its admissibility, that party is considered to have waived
whatever objection the party may have had thereto, and
the evidence is in the record for consideration the same
as other evidence.
Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327,
342, 754 N.W.2d 406, 423 (2008). A court cannot err with
respect to a matter not submitted to it for disposition. See
McQuinn v. Douglas Cty. Sch. Dist. No. 66, 259 Neb. 720, 612
N.W.2d 198 (2007).
because Huber did not object at trial to the testimony of
Rohrig’s expert pertaining to the clinical psychological exami-
nation, Huber waived her appellate challenge to the evidence
discovered, based on the improper grant of the motion to com-
pel. because the issue was not preserved for appellate review,
the substance of this assignment of error has been waived.
VI. CONCLUSION
We conclude that the district court did not err when it
granted Rohrig’s motion for mistrial, denied Huber’s motion for
recusal, denied Huber’s request to put in evidence of Rohrig’s
character, and denied Huber’s motion to compel Taylon’s depo-
sition. We conclude that it was error to deny Huber’s request
to review the juror questionnaires but that no prejudice resulted
from this ruling. Finally, we conclude that the district court
erred when it granted Rohrig’s pretrial motion to compel Huber
to submit to a pretrial clinical psychological examination;
however, because Huber did not object at trial to the admis-
sion of the evidence obtained during the examination, Huber
did not preserve the issue for appellate review and has waived
her challenge to the pretrial order directing she submit to the
psychological evaluation.
affiRMeD.
888 	280 NEbRASkA REpORTS