Sturzenegger v. Father Flanagan's Boys' Home

without limitations.20 But it, and the doctrine of stare decisis,
are entitled to great weight—particularly in cases involving
statutory interpretation. Absent a reason why our decisions in
Griffin, Neiss, Wren, and Schall21 were manifestly wrong,22 I
would continue to follow them, as the Legislature has done for
the better part of two decades. I would remand this cause for
resentencing, and dissent to the extent that the majority opinion
holds otherwise.
H eavican, C.J., and S tepHan, J., join in this concurrence
and dissent.
20 See, e.g., Bronsen v. Dawes County, 272 Neb. 320, 722 N.W.2d 17 (2006).
21 Griffin, supra note 2; Neiss, supra note 2; Wren, supra note 2; Schall, supra
note 2.
22 See Bronsen, supra note 20.
J oHn J. S turzenegger , an individual , appellant , v .
F atHer F lanagan ’S B oyS’ H ome , a neBraSka
corporation , et al ., appelleeS.
754 N.W.2d 406
Filed August 8, 2008. 	No. S-06-1364.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by such rules; judicial discretion is involved
only when the rules make such discretion a factor in determining admissibility.
2. Trial: Evidence: Appeal and Error. A trial court has the discretion to determine
the relevancy and admissibility of evidence, and such determinations will not be
disturbed on appeal unless they constitute an abuse of that discretion.
3. Rules of Evidence: Other Acts. Whether evidence is admissible for any proper
purpose under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995),
rests within the discretion of the trial court.
4. Rules of Evidence: Witnesses. A determination pursuant to Neb. Evid. R. 608(2),
Neb. Rev. Stat. § 27-608(2) (Reissue 1995), regarding cross-examination of a wit-
ness on specific instances of conduct rests within the discretion of the trial court.
5. Trial: Expert Witnesses: Appeal and Error. A trial court’s ruling in receiving or
excluding an expert’s testimony which is otherwise relevant will be reversed only
when there has been an abuse of discretion.
6. Pretrial Procedure: Appeal and Error. Decisions regarding discovery are directed
to the discretion of the trial court, and will be upheld in the absence of an abuse
of discretion.
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Cite as 276 Neb. 327
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

7. Motions for Mistrial: Appeal and Error. Decisions regarding motions for mistrial
are directed to the discretion of the trial court, and will be upheld in the absence of
an abuse of discretion.
8. Motions for New Trial: Appeal and Error. Decisions regarding motions for
new trial are directed to the discretion of the trial court, and will be upheld in the
absence of an abuse of discretion.
9. Judges: Words and Phrases. A judicial abuse of discretion requires that the rea-
sons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of
a substantial right and a just result.
10. Jury Instructions. Whether the jury instructions given by a trial court are correct
is a question of law.
11. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
12. Trial: Polygraph Tests. the results of polygraph examinations are not admissible
into evidence.
13. Trial: Witnesses. In order to predicate error upon a ruling of the court refusing to
permit a witness to testify, or to answer a specific question, the record must show
an offer to prove the facts sought to be elicited.
14. 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.
15. Trial: Evidence: Polygraph Tests. Evidence relating to a witness’ willingness or
refusal to take a polygraph examination is generally inadmissible.
16. Trial: Evidence: Waiver. 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 its admissibility, that party is con-
sidered 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.
17. Rules of the Supreme Court: Records: Appeal and Error. Neb. Ct. R. App. P.
§ 2-109(D)(1)(f) and (g) requires that factual recitations be annotated to the record,
whether they appear in the statement of facts or argument section of a brief. the
failure to do so may result in an appellate court’s overlooking a fact or otherwise
treating the matter under review as if the represented fact does not exist.
18. Pretrial Procedure. Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action,
whether it relates to the claim or defense of any other party.
19. Pretrial Procedure: Proof: Appeal and Error. the party asserting error in
a discovery ruling bears the burden of showing that the ruling was an abuse
of discretion.
20. Trial: Evidence: Appeal and Error. An erroneous exclusion of evidence is
reversible only if the complaining litigant was prejudiced by the exclusion of
such evidence.
21. ____: ____: ____. An improper exclusion of evidence is ordinarily not prejudicial
where substantially similar evidence is admitted without objection.
328 	276 NEBRASkA REPoRtS

22. Evidence: Appeal and Error. In order that assignments of error concerning the
admission or rejection of evidence may be considered, an appellate court requires
that appropriate references be made to the specific evidence against which an
objection is urged.
23. Rules of Evidence: Other Acts. the reason for Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Reissue 1995), is that other bad acts evidence, despite its rele-
vance, creates the risk of a decision by the trier of fact on an improper basis.
24. ____: ____. Evidence of prior bad acts which is relevant for any purpose other than
to show the actor’s propensity is admissible under Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Reissue 1995).
25. Rules of Evidence: Other Acts: Words and Phrases. Evidence that is offered for
a proper purpose under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue
1995), is often referred to as having “special” or “independent relevance,” which
means its relevance does not depend on its tendency to show propensity.
26. Rules of Evidence: Other Acts: Rebuttal Evidence: Damages. Evidence of a
plaintiff’s prior bad acts may be admitted, pursuant to Neb. Evid. R. 404(2), Neb.
Rev. Stat. § 27-404(2) (Reissue 1995), where it rebuts the plaintiff’s evidence
of damages.
27. Rules of Evidence: Other Acts. Whether Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Reissue 1995), or Neb. Evid. R. 608(2), Neb. Rev. Stat. § 27-608(2)
(Reissue 1995), applies to the admissibility of other-acts evidence depends on the
purpose for which the proponent introduced the other-acts evidence. Rule 404(2)
applies when extrinsic evidence is offered as relevant to a material issue in the
case. Rule 608(2) applies when extrinsic evidence is offered to impeach a witness,
to show the character of the witness for untruthfulness—in other words, where the
only theory of relevance is impeachment by prior misconduct.
28. ____: ____. Because Neb. Evid. R. 608(2), Neb. Rev. Stat. § 27-608(2) (Reissue
1995), affects only evidence of prior instances of conduct when properly relevant
solely for the purpose of attacking or supporting a witness’ credibility, it in no way
affects the admission of evidence of such prior acts for other purposes under Neb.
Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995).
29. Trial: Rebuttal Evidence: Other Acts. Evidence relevant to a material issue is
not rendered inadmissible because it happens to include references to specific bad
acts of a witness, and such evidence should be admitted where it is introduced to
disprove a specific fact material to the case.
30. ____: ____: ____. Evidence that happens to include prior misconduct may still
be admissible when offered to show the witness’ possible bias or self-interest
in testifying.
31. Pleadings: Evidence. While a superseded pleading is no longer a judicial admis-
sion, it is admissible as evidence of the facts alleged therein, and may be introduced
and considered the same as any other evidence.
32. Trial: Courts: Expert Witnesses. under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 u.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), the trial court acts as a
gatekeeper to ensure the evidentiary relevance and reliability of an expert’s opinion.
this entails a preliminary assessment of whether the reasoning or methodology
underlying the testimony is valid and whether that reasoning or methodology can
StuRzENEggER v. FAthER FLANAgAN’S BoyS’ homE 	329
Cite as 276 Neb. 327

be applied to the facts in issue. In addition, the trial court must determine if the
witness has applied the methodology in a reliable manner.
33. Courts: Expert Witnesses. It is only when a party opposing an expert’s tes-
timony has sufficiently called into question the testimony’s factual basis, data,
principles, or methods, or their application, that the trial judge must determine
whether the testimony has a reliable basis in the knowledge and experience of the
relevant discipline.
34. Trial: Appeal and Error. In order to preserve, as a ground of appeal, an oppo-
nent’s misconduct during closing argument, the aggrieved party must have objected
to the improper remarks no later than at the conclusion of the argument.
35. Motions for Mistrial: Time. An aggrieved party wishing a mistrial because of an
opponent’s misconduct during argument is required to move for such before the
cause is submitted.
36. 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.
37. ____. In addition to being timely, a motion for mistrial must be premised upon
actual prejudice, not the mere possibility of prejudice.
38. Jury Instructions: Proof: Appeal and Error. to establish reversible error from
a court’s failure to give a requested jury instruction, an appellant has the burden
to show that (1) the tendered instruction is a correct statement of the law, (2) the
tendered instruction was warranted by the evidence, and (3) the appellant was
prejudiced by the court’s failure to give the requested instruction.
39. Appeal and Error. Errors argued but not assigned will not be considered
on appeal.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
W. ruSSell B oWie iii, Judge. Affirmed.
theodore R. Boecker and Jason m. Bruno, of Sherrets &
Boecker, L.L.C., for appellant.
James martin Davis, of Davis Law offices, for appellees
Father Flanagan’s Boys’ home and glenn A. moore.
H eavican, 	C.J., 	W rigHt, 	connolly, 	gerrard, 	S tepHan,
mccormack, and miller -lerman, JJ.
gerrard, J.
NAtuRE oF CASE
John J. Sturzenegger sued Father Flanagan’s Boys’ home
(Boys town) and a former Boys town teacher based on an
alleged instance of sexual abuse that occurred while Sturzenegger
was a resident of Boys town. After a rather contentious trial, a
jury rejected Sturzenegger’s claims and the district court entered
330 	276 NEBRASkA REPoRtS

judgment against him. Sturzenegger appeals, claiming that the
court erred in several rulings during the course of the trial. the
primary issue presented in this appeal is whether the court erred
in permitting evidence of Sturzenegger’s character and behavior
before the alleged incident. But Sturzenegger argued that many
of his personal problems were caused by the alleged abuse. So,
evidence that he had those problems before the alleged abuse
was relevant to prove that he did not have injuries resulting from
sexual abuse, and that no abuse occurred. We affirm the judg-
ment of the district court.
BACkgRouND
this litigation began when Sturzenegger filed a complaint
against several defendants, including Boys town and glenn A.
moore, a former teacher at Boys town. Boys town and moore
are the only defendants who remain relevant to this appeal.
Sturzenegger’s operative third amended complaint alleged that
Sturzenegger began living at Boys town in 1997, when he was
13 years old. Sturzenegger alleged that moore, an assistant
family teacher at Boys town, made sexual advances toward
Sturzenegger 	and 	fondled 	his 	genitals, 	“thereby 	traumatiz-
ing” him.
At trial, Sturzenegger testified that he had been placed in
Boys town when he was 13 because he was having some “fam-
ily problems.” Sturzenegger said he was not using drugs or alco-
hol at that time. While he was at Boys town, he and eight other
boys lived in a house with their family teachers and moore, the
assistant family teacher. moore did not live with them, but had a
room in the residence for when he stayed overnight, usually on
weekends. For reasons that will be apparent later, it is relevant to
note that moore is African-American. Sturzenegger said that he
trusted moore and went to moore when he had problems.
Sturzenegger was diabetic and had to regulate his diet. his
teachers, including moore, helped him monitor his blood sugar.
Sturzenegger testified that on the evening of August 23, 1997,
his blood sugar was low, so he had been in and out of moore’s
office checking his blood sugar. Sturzenegger said moore asked
him what he would do for $5. According to Sturzenegger,
moore asked him if he would run around the house naked
StuRzENEggER v. FAthER FLANAgAN’S BoyS’ homE 	331
Cite as 276 Neb. 327

for $5, and when Sturzenegger said no, moore asked again.
Sturzenegger said he thought moore was kidding. Sturzenegger
testified that then,
I went to the bathroom. Came back to the office. Checked
my blood sugars. they were low again. Went to get some
orange juice, came back to the office, sat down. Remember
climbing into the chair that was next to the fridge. [moore]
asked me — started making more advances toward me. he
said, would you masturbate in front of me for $5. Can I get
you up for $5. Stuff like that. I kind of felt pressured into
it. So I pulled down my pants a little bit and kind of started
to touch myself and he just rolled his chair . . . over to me
and pulled my pants down the rest of the way and started
fondling me.
Sturzenegger testified that this went on for 60 to 90 sec-
onds, before moore asked Sturzenegger if he was nervous.
Sturzenegger said he told moore to stop touching him, and
moore did. Sturzenegger said he pulled up his pants and left
the room, but returned and confronted moore. moore asked
what he could do “to make it right” and offered to give
Sturzenegger candy or money, or to be more lenient with disci-
pline. Sturzenegger said that after the incident, moore was more
lenient with his discipline.
Sturzenegger testified about a number of personal problems
that he attributed to the alleged sexual abuse. For instance,
Sturzenegger testified,
I still wake up three to four times a week in a hot sweat
after — especially since this trial has been coming up. It’s
been happening more and more. thinking, dreaming about
[moore] at night and him redoing this over and over to me.
It just scares me. I have a racial problem. Racial hatred
towards black people because of what happened to me.
Just lots of other things. my attitude isn’t always what it
should be.
. . . .
. . . my attitude is bad most of the time. I have poor
attitude because I look down upon myself because I didn’t
stop this from happening to myself.
332 	276 NEBRASkA REPoRtS

Sturzenegger testified that he had been using illegal drugs
and had some issues with sexual function because of what he
alleged moore had done to him. And Sturzenegger adduced
expert psychological testimony linking his claimed symptoms
to the alleged sexual abuse and to support the diagnoses of
posttraumatic stress disorder, polysubstance abuse disorder, and
sexual dysfunction.
on cross-examination, Sturzenegger was questioned exten-
sively and aggressively regarding instances of misconduct that
occurred while he was at Boys town, and other instances of
wrongdoing. he was questioned regarding drug use, before and
after the alleged incident. And other witnesses testified regard-
ing Sturzenegger’s misconduct, particularly at Boys town. But
not all of the incidents about which Sturzenegger was cross-
examined were substantiated by other evidence. Sturzenegger
was also cross-examined, over objection, about factual allega-
tions in his superseded pleadings that were inconsistent with his
operative complaint and trial testimony. the superseded plead-
ings were later admitted into evidence.
Sturzenegger also testified on cross-examination regarding
a polygraph examination that he said he had taken and passed.
References to polygraph examinations had been precluded by
a motion in limine. But on cross-examination, Sturzenegger
responded to a question from Boys town’s counsel by telling
counsel, “[w]ell, you know my word is good. And that’s pursu-
ant to the testimony I cannot give here today.” Counsel asked
the court to admonish Sturzenegger, but the court refused. Later,
Sturzenegger again responded to a question about his credibility
by saying, “[p]ursuant to the testimony that’s not allowed here,
you know I’m telling the truth.”
Counsel began to ask for an admonishment, but withdrew it,
and asked Sturzenegger, “[w]hat is this evidence that you say
you have that the jury can’t hear?” Sturzenegger testified that
he had taken and passed a polygraph test. Another colloquy, and
a discussion had outside the presence of the jury on a separate
objection, suggests that when Boys town’s counsel asked the
question, he had been unaware of the polygraph examination
about which Sturzenegger testified.
StuRzENEggER v. FAthER FLANAgAN’S BoyS’ homE 	333
Cite as 276 Neb. 327

During the same sidebar discussion, Sturzenegger’s counsel
said that he was “going to ask [Sturzenegger] on redirect about
that polygraph examination and I have every right to because
he opened the door and he talked about it.” the court ruled on
the unrelated objection, but said, “I’m not saying you can’t talk
about the polygraph test.” however, Sturzenegger’s counsel did
not ask him about the polygraph during his redirect examination,
and it does not appear from the record that any other evidence of
the polygraph was offered at trial, aside from two more instances
in which Sturzenegger volunteered it after Boys town’s counsel
questioned his credibility. the court later reinstated its prohibi-
tion of and reference to polygraphs.
When moore testified, he denied Sturzenegger’s allegations.
According to moore, he and Sturzenegger did not get along
well and Sturzenegger had used profanity and racial slurs
against moore. moore recalled that Sturzenegger’s blood sugar
had been off on the night of the alleged incident, but denied
making sexual overtures to Sturzenegger, having any sexual
contact with Sturzenegger, or offering Sturzenegger money to
do anything.
on cross-examination, moore was not asked whether or not
he had refused a polygraph examination. But during the testi-
mony of the Boys town police officer who investigated the inci-
dent, an offer of proof had been made that moore had refused a
polygraph. moore’s counsel did ask the officer whether he had
arrested moore, and the officer testified, without objection, that
he had not. Sturzenegger proffered the officer’s report of his
investigation, but Boys town’s hearsay objection was sustained.
Boys town also adduced testimony from Dr. terry Davis, a
psychiatrist, about whether Sturzenegger suffered from any men-
tal disorder and whether “he had suffered any psychologic[al]
injury or damage as a result of” the alleged sexual assault.
Davis diagnosed Sturzenegger with “malingering,” “polysub-
stance 	dependence,” 	and 	“antisocial 	personality 	disorder.”
Davis explained that “malingering” is “a diagnosis that is given
to reflect an intentional false or grossly exaggerated report
of physical or psychiatric symptoms for purposes of what’s
called an external incentive for purposes of obtaining financial
compensation, avoiding work, avoiding military duty, obtaining
334 	276 NEBRASkA REPoRtS

drugs.” Davis said the diagnosis was based, in part, on a discrep-
ancy between claimed disability and objective evidence, and a
lack of cooperation with evaluation and treatment. Sturzenegger
made a continuing objection to this testimony. Davis concluded,
contrary to Sturzenegger’s evidence, that Sturzenegger did not
suffer from posttraumatic stress disorder.
Davis’ opinions were based, in part, on psychological tests
administered by Dr. Rosanna Jones thurman, a psychologist
in Davis’ office. over objection, Davis was permitted to testify
regarding his assessment of the test results and how they sup-
ported his diagnoses.
Before the case was submitted to the jury, Sturzenegger asked
to have the jury instructed on alternative theories of recovery,
including breach of warranty. Sturzenegger had alleged and tes-
tified that he had been assured by Boys town that he would be
safe there. the proffered instructions were refused.
In closing statement, Boys town’s counsel was extremely crit-
ical of Sturzenegger’s credibility and of the evidence presented
by Sturzenegger’s attorneys. Boys town’s counsel referred on
several occasions to the volumes of evidence that Sturzenegger’s
attorneys had produced, essentially arguing that all of that evi-
dence was intended to obscure the fact that Sturzenegger had
not proved his case. Boys town’s counsel also argued that 435
children lived at Boys town and that Sturzenegger was “asking
[the jury] to take a million dollars away from those 435 kids
and put it in his pocket.” Sturzenegger’s objection to that remark
was sustained.
In sum, Sturzenegger made three objections during Boys
town’s closing argument. two of those objections were sus-
tained, including the objection specifically mentioned above,
but Sturzenegger did not ask to have the offending remarks
stricken or to have the jury admonished to disregard them. Nor
did Sturzenegger move for a mistrial.
the jury returned verdicts for Boys town and moore, and the
court entered judgment accordingly. Sturzenegger appeals.
ASSIgNmENtS oF ERRoR
Sturzenegger assigns, consolidated, restated, and renumbered,
that the district court erred in
StuRzENEggER v. FAthER FLANAgAN’S BoyS’ homE 	335
Cite as 276 Neb. 327

(1) 	precluding Sturzenegger from referring to or allowing
the jury to consider his successful polygraph examination;
(2) 	refusing to allow evidence that Sturzenegger volunteered
to take a polygraph examination;
(3) 	refusing to allow evidence of either moore’s refusal to
take a polygraph examination or his inconsistent testimony of
his willingness to take one;
(4) 	failing to grant a new trial after Boys town and moore
referenced that moore was not arrested;
(5) 	sustaining a motion to quash filed by moore which pre-
vented Sturzenegger from obtaining information about whether
Boys town was paying for moore’s defense;
(6) 	refusing to allow into evidence the result of Boys town’s
investigation of Sturzenegger’s allegations;
(7) 	allowing improper character evidence of Sturzenegger;
(8) 	allowing evidence of specific bad acts of Sturzenegger;
(9) 	allowing questioning of Sturzenegger based upon inad-
missible evidence that was not supported by later witnesses
at trial;
(10) allowing 	cross-examination 	and 	evidence 	based 	on
Sturzenegger’s superseded pleadings;
(11) allowing Davis to testify regarding reports which were
lacking in foundation and should have been excluded under
Schafersman v. Agland Coop1;
(12) allowing Davis to offer his opinion about Sturzenegger’s
truthfulness;
(13) failing to grant a mistrial based on improper argument
during Boys town’s closing statement;
(14) failing to grant a new trial after Boys town’s counsel
made comments to the jury regarding the financial ramifications
a verdict would have on Boys town;
(15) refusing to instruct the jury on Sturzenegger’s claims for
breach of warranty and breach of contract; and
(16) issuing so many erroneous rulings that the aggregate
effect denied Sturzenegger due process and a fair trial.
1 Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
336 	276 NEBRASkA REPoRtS

StANDARD oF REvIEW
[1-4] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules;
judicial discretion is involved only when the rules make such
discretion a factor in determining admissibility.2 A trial court
has the discretion to determine the relevancy and admissibil-
ity of evidence, and such determinations will not be disturbed
on appeal unless they constitute an abuse of that discretion.3 In
particular, whether evidence is admissible for any proper pur-
pose under Neb. Evid. R. 404(2)4 rests within the discretion of
the trial court,5 as does a determination pursuant to Neb. Evid.
R. 608(2)6 regarding cross-examination of a witness on specific
instances of conduct.7
[5-9] A trial court’s ruling in receiving or excluding an
expert’s testimony which is otherwise relevant will be reversed
only when there has been an abuse of discretion.8 Decisions
regarding discovery, motions for mistrial, and motions for new
trial are also directed to the discretion of the trial court, and will
be upheld in the absence of an abuse of discretion.9 A judicial
abuse of discretion requires that the reasons or rulings of a trial
judge be clearly untenable, unfairly depriving a litigant of a sub-
stantial right and a just result.10
[10,11] Whether the jury instructions given by a trial court
are correct is a question of law. When reviewing questions of
2 Karel v. Nebraska Health Sys., 274 Neb. 175, 738 N.W.2d 831 (2007).
3 Id.
4 Neb. Rev. Stat. § 27-404(2) (Reissue 1995).
5 See, State v. Carter, 255 Neb. 591, 586 N.W.2d 818 (1998); State v. Egger,
8 Neb. App. 740, 601 N.W.2d 785 (1999).
6 Neb. Rev. Stat. § 27-608(2) (Reissue 1995).
7 See, id.; State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991); State
v. King, 197 Neb. 729, 250 N.W.2d 655 (1977).
8 Bellino v. McGrath, 274 Neb. 130, 738 N.W.2d 434 (2007).
9 See, Malchow v. Doyle, 275 Neb. 530, 748 N.W.2d 28 (2008); Poppe v.
Siefker, 274 Neb. 1, 735 N.W.2d 784 (2007); Nichols v. Busse, 243 Neb.
811, 503 N.W.2d 173 (1993).
10 Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492 (2007).
StuRzENEggER v. FAthER FLANAgAN’S BoyS’ homE 	337
Cite as 276 Neb. 327

law, an appellate court has an obligation to resolve the questions
independently of the conclusion reached by the trial court.11
ANALySIS
polygrapH evidence
[12] Sturzenegger’s first three assignments of error all gener-
ally relate to polygraph examinations. As an underlying princi-
ple, it is clear under established Nebraska law that the results of
polygraph examinations are not admissible into evidence.12 And
on appeal, Sturzenegger does not take issue with those holdings.
Instead, Sturzenegger argues that Boys town “opened the door”
to polygraph examination results during cross-examination. And
Sturzenegger argues that his and moore’s willingness to submit
to polygraph examination was relevant to their credibility. We
address each point in turn.
[13] Initially, we find no merit to Sturzenegger’s argument that
Boys town opened the door to Sturzenegger’s alleged polygraph
results, for several reasons. First, it appears that following Boys
town’s cross-examination of Sturzenegger, Sturzenegger made
no offer of proof with respect to polygraph results. Pursuant
to Neb. Evid. R. 103(1)(b),13 error may not be predicated upon
a ruling which excludes evidence unless the substance of the
evidence was made known to the judge by offer or was appar-
ent from the context within which questions were asked. So,
in order to predicate error upon a ruling of the court refusing
to permit a witness to testify, or to answer a specific question,
the record must show an offer to prove the facts sought to be
elicited.14 In this case, Sturzenegger did not offer, at trial, to
prove the circumstances and foundation for the claimed poly-
graph examination.
11 See Karel, supra note 2.
12 See, e.g., Mathes v. City of Omaha, 254 Neb. 269, 576 N.W.2d 181 (1998);
State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997), disapproved on other
grounds, State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999); State v.
Temple, 192 Neb. 442, 222 N.W.2d 356 (1974).
13 See Neb. Rev. Stat. § 27-103(1)(b) (Reissue 1995).
14 Talle v. Nebraska Dept. of Soc. Servs., 253 Neb. 823, 572 N.W.2d 790
(1998).
338 	276 NEBRASkA REPoRtS

[14] Beyond that, Boys town did not “open the door” to
discussion of a polygraph examination. the concept of “open-
ing 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.15 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.16 “opening the door” is simply a contention
that competent evidence which was previously irrelevant is now
relevant through the opponent’s admission of other evidence on
the same issue.17
But here, Sturzenegger is not arguing that responsive evi-
dence should have been admitted—he is arguing that more
inadmissible evidence should have been admitted to bolster
the same, irrelevant point. And it is questionable whether Boys
town’s counsel was responsible for introducing the subject of
polygraphs. the colloquy relied upon by Sturzenegger only
occurred after Sturzenegger, in response to direct but proper
questions about his credibility, repeatedly volunteered references
to testimony that he “cannot give.” Boys town’s counsel only
pursued the issue with Sturzenegger after his request to admon-
ish Sturzenegger had been denied. In other words, the colloquy
now relied upon by Sturzenegger as “opening the door” began
with Sturzenegger’s own repeated references to evidence he
knew to be inadmissible, not Boys town’s question in response
to Sturzenegger’s volunteered statement.
[15] In short, we find no abuse of discretion in the dis-
trict court’s handling of polygraph examination results. But
Sturzenegger also argues that his simple willingness to submit
to a polygraph and moore’s alleged unwillingness were also
admissible. this argument is equally without merit. We have, in
fact, specifically disapproved any reference to polygraph tests at
15 State v. Lessley, 257 Neb. 903, 601 N.W.2d 521 (1999); State v. Harrold,
256 Neb. 829, 593 N.W.2d 299 (1999).
16 Id.
17 Id.
StuRzENEggER v. FAthER FLANAgAN’S BoyS’ homE 	339
Cite as 276 Neb. 327

trial.18 And we agree with courts which have held that evidence
relating to a witness’ willingness or refusal to take a polygraph
examination is generally inadmissible.19
While an inadvertent reference to a polygraph examination
may not be reversible error,20 polygraph results are excluded
because polygraph examinations are not wholly accurate.21 It
would make little sense to find relevance in a party’s willingness
or refusal to submit to an inaccurate, inadmissible test.22 And
what little relevance could be found is substantially outweighed
by the danger of unfair prejudice,23 as the jurors could be con-
fused about whether a polygraph had actually been given and
are likely to speculate about what the result of such a test could
have been. In fact, the effect on the jurors of the knowledge of
a witness’ readiness or refusal to submit to something which the
jurors might well assume would effectively determine guilt or
innocence could be more devastating than actually disclosing
the results of such a test, which would at least require scien-
tific foundation.24 We conclude that evidence of Sturzenegger’s
and moore’s willingness to submit to a polygraph was prop-
erly excluded.
18 See Temple, supra note 12.
19 See, e.g., United Fire and Cas. v. Historic Preservation, 265 F.3d 722 (8th
Cir. 2001); U.S. v. Vigliatura, 878 F.2d 1346 (11th Cir. 1989); deVries v.
St. Paul Fire and Marine Ins. Co., 716 F.2d 939 (1st Cir. 1983); Rollins
v. State, 362 Ark. 279, 208 S.W.3d 215 (2005); State v. Webber, 260 kan.
263, 918 P.2d 609 (1996); Industrial Indem. Co. v. Kallevig, 114 Wash. 2d
907, 792 P.2d 520 (1990); State v. Dery, 545 A.2d 1014 (R.I. 1988); State
v. Britson, 130 Ariz. 380, 636 P.2d 628 (1981); Moore v. State, 267 Ind.
270, 369 N.E.2d 628 (1977); State v. Mower, 314 A.2d 840 (me. 1974);
Penn v. Com., 417 S.W.2d 258 (ky. 1967); State v. Perry, 274 minn. 1,
142 N.W.2d 573 (1966); People v. Carter, 48 Cal. 2d 737, 312 P.2d 665
(1957); People v. Muniz, 190 P.3d 774 (Colo. App. 2008). Cf. Temple,
supra note 12.
20 See State v. Houser, 234 Neb. 310, 450 N.W.2d 697 (1990) (collecting
cases).
21 See Mathes, supra note 12.
22 See, Carter, supra note 19; Muniz, supra note 19.
23 See Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 1995).
24 See Perry, supra note 19.
340 	276 NEBRASkA REPoRtS

Finally, Sturzenegger argues that he should have been allowed
to cross-examine moore about his willingness to submit to a
polygraph because of an alleged inconsistency in moore’s depo-
sition testimony. Sturzenegger contends that during his initial
interview with Boys town police, moore agreed to take a poly-
graph, but that in his deposition, moore denied agreeing to take
a polygraph.
We reject Sturzenegger’s argument that he should have been
permitted to cross-examine moore on this point. First, we dis-
agree with Sturzenegger’s interpretation of moore’s deposition.
According to police, when moore was initially interviewed, he
agreed to take a polygraph. But later, he refused. At his deposi-
tion, moore was asked if had agreed to take a polygraph, and
he said that he had not. But when he was asked whether that
had been his initial response, he said he did not remember
and also did not remember how long he had taken before he
refused a polygraph. In other words, contrary to Sturzenegger’s
argument, moore testified at his deposition that he eventually
refused a polygraph, but did not remember whether he had ini-
tially agreed.
Specific instances of the conduct of a witness, for the pur-
pose of attacking or supporting the witness’ credibility, may be
inquired to on cross-examination in the discretion of the court.25
here, the probative value of the evidence, as to credibility, was
minimal. moore had testified only that he did not remember
initially agreeing to take a polygraph—he did not deny doing
so. And the subject of the alleged conduct involved evidence
that was inadmissible for other reasons—the reference to a poly-
graph examination. It was not an abuse of discretion to exclude
it on that basis, even to the extent the evidence was relevant
to credibility.
For the foregoing reasons, we find Sturzenegger’s assignments
of error relating to polygraph examinations to be without merit.
reFerence to moore ’S not B eing arreSted
Sturzenegger argues that the district court should have granted
a new trial because evidence was adduced that moore had not
25 See § 27-608(2).
StuRzENEggER v. FAthER FLANAgAN’S BoyS’ homE 	341
Cite as 276 Neb. 327

been arrested. the district court, in ruling on the parties’ motions
in limine, had ordered that no reference be made to the fact that
the county attorney had not prosecuted moore. But those rulings
did not expressly preclude evidence that moore had not been
arrested by Boys town police.
[16] And when the Boys town police officer who interviewed
moore was asked whether he had arrested moore, Sturzenegger
did not object. In fact, on redirect examination, Sturzenegger’s
counsel immediately asked the officer why he had not arrested
moore, and was told that the officer “wanted the opinion of
the county attorney.” Sturzenegger did not complain about the
question until the next day. In short, Sturzenegger did not make
a timely objection to the testimony about which he now com-
plains, and even pursued the subject on redirect examination. 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 its admissibility, that party is consid-
ered 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.26
[17] Sturzenegger also argues, in his appellate brief, that
moore testified that the county attorney did not prosecute him.
But moore’s brief does not identify where, in the record, this
testimony supposedly occurred, nor did we find any such tes-
timony, or objection thereto, in our review of the record. Neb.
Ct. R. App. P. § 2-109(D)(1)(f) and (g) requires that factual
recitations be annotated to the record, whether they appear
in the statement of facts or argument section of a brief. the
failure to do so may result in an appellate court’s overlooking
a fact or otherwise treating the matter under review as if the
represented fact does not exist.27 thus, we find no basis for
Sturzenegger’s argument.
26 R.W. v. Schrein, 264 Neb. 818, 652 N.W.2d 574 (2002).
27 See Smith v. Colorado Organ Recovery Sys., 269 Neb. 578, 694 N.W.2d 610
(2005).
342 	276 NEBRASkA REPoRtS

In short, Sturzenegger has waived his argument with respect
to this evidence by failing to make a timely objection or direct
us to the basis for his argument in the record. We find no merit
to his assignments of error.
payment For moore ’S deFenSe
Sturzenegger argues that the district court abused its discre-
tion in quashing his subpoena for records of payments made to
moore’s attorney. Sturzenegger’s argument, in essence, is that if
Boys town were paying for moore’s defense, moore might be
biased, and Sturzenegger should have been permitted discovery
to explore that bias.
Sturzenegger cites no authority in support of his claim that he
was entitled to discovery on this matter, nor are we able to dis-
cern in what way such information might be relevant to moore’s
credibility. moore had no motive to admit to sexual abuse,
regardless of who might have been paying for his defense.
[18,19] Parties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved
in the pending action, whether it relates to the claim or defense
of any other party.28 But the party asserting error in a discovery
ruling bears the burden of showing that the ruling was an abuse
of discretion.29 Sturzenegger has not demonstrated the relevance
of the information sought here and, therefore, has not shown an
abuse of discretion.
B oyS toWn police report
Sturzenegger argues that the court erred in sustaining Boys
town’s hearsay objection to the Boys town police report memo-
rializing the Boys town police investigation of the alleged
incident. We agree that the district court erred in excluding the
police report, but conclude that Sturzenegger was not prejudiced
by the error.
Sturzenegger argues that the police report was admissible for
several reasons. We agree with his argument that based on the
28 Larkin v. Ethicon, Inc., 251 Neb. 169, 556 N.W.2d 44 (1996).
29 Future Motels, Inc. v. Custer Cty. Bd. of Equal., 252 Neb. 565, 563 N.W.2d
785 (1997).
StuRzENEggER v. FAthER FLANAgAN’S BoyS’ homE 	343
Cite as 276 Neb. 327

contents of the report and the foundation presented, the report
was admissible pursuant to the business records exception to the
hearsay rule,30 although, strictly speaking, Sturzenegger should
have offered a redacted copy of the report that excluded any
reference to polygraph examinations.31
[20,21] But an erroneous exclusion of evidence is reversible
only if the complaining litigant was prejudiced by the exclusion
of such evidence.32 And an improper exclusion of evidence is
ordinarily not prejudicial where substantially similar evidence
is admitted without objection.33 here, all of the information
in the police report was obtained through the investigation of
the police officer who testified at trial. that officer, and other
witnesses interviewed during the investigation, testified at trial
about the events of the investigation that were described in the
report, excepting some statements that were excluded on other
grounds. With the exception of polygraph-related evidence,
Sturzenegger does not complain on appeal about any other
excluded statements.
In short, the substance of the admissible evidence in the
police report came into evidence anyway, through other testi-
mony. therefore, although the district court erred in excluding
the police report, we find that the error was not prejudicial
to Sturzenegger.
cHaracter evidence and croSS-examination
oF S turzenegger
Sturzenegger assigns several errors with respect to pur-
ported character evidence, prior bad acts, and improper cross-
examination. 	First 	and 	foremost, 	Sturzenegger 	complains
about evidence that, generally summarized, established that
30 See, Neb. Evid. R. 803(5), Neb. Rev. Stat. § 27-803(5) (Cum. Supp. 2006);
Sacco v. Carothers, 257 Neb. 672, 601 N.W.2d 493 (1999).
31 See, Holman v. Papio-Missouri River Nat. Resources Dist., 246 Neb. 787,
523 N.W.2d 510 (1994); In re Interest of Kyle O., 14 Neb. App. 61, 703
N.W.2d 909 (2005).
32 V.C. v. Casady, 262 Neb. 714, 634 N.W.2d 798 (2001).
33 Livingston v. Metropolitan Util. Dist., 269 Neb. 301, 692 N.W.2d 475
(2005).
344 	276 NEBRASkA REPoRtS

Sturzenegger had engaged in misconduct before and at the time
of his alleged sexual abuse.
[22] We note, initially, that our review on this issue is made
more difficult by the “shotgun” approach to argument taken by
Sturzenegger’s appellate brief. In order that assignments of error
concerning the admission or rejection of evidence may be con-
sidered, an appellate court requires that appropriate references
be made to the specific evidence against which an objection
is urged.34 Sturzenegger’s appellate argument provides a broad
generalization of a multitude of “examples” of erroneously
admitted evidence, instead of specific arguments directed at
specific rulings.
But even considered generally, Sturzenegger’s appellate argu-
ment lacks merit. he claims, in essence, that evidence of
his conduct and misconduct was simply a “smear campaign”
intended to discredit him.35 he frames his argument under rules
404 and 608 and Neb. Evid. R. 609,36 and we do likewise. We
agree that under those rules, ordinarily, evidence of the kind at
issue in this case would be inadmissible. But here, the evidence
was admissible to show that Sturzenegger’s psychological dam-
ages existed before he was allegedly abused.
[23-25] Rule 404(2) prohibits the admission of other bad acts
evidence for the purpose of proving the character of a person
in order to show that he or she acted in conformity therewith.
the reason for the rule is that such evidence, despite its rele-
vance, creates the risk of a decision by the trier of fact on an
improper basis.37 however, evidence of prior bad acts which is
relevant for any purpose other than to show the actor’s propen-
sity is admissible under rule 404(2).38 Evidence that is offered
for a proper purpose is often referred to as having “special” or
34 In re Estate of Jeffrey B., 268 Neb. 761, 688 N.W.2d 135 (2004).
35 Brief for appellant at 25.
36 Neb. Rev. Stat. § 27-609 (Reissue 1995).
37 See State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).
38 See, State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007); Sanchez, supra
note 37.
StuRzENEggER v. FAthER FLANAgAN’S BoyS’ homE 	345
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“independent relevance,” which means its relevance does not
depend on its tendency to show propensity.39
[26] the record in this case is clear about the specific, inde-
pendent purposes for which the evidence at issue was offered.40
much of the evidence complained of by Sturzenegger was
relevant because Sturzenegger’s misconduct at Boys town was
punished by moore, which was relevant because it may have
given Sturzenegger a motive to accuse moore of abusing him.
But more importantly, the theory of Sturzenegger’s case was
that the alleged sexual abuse had caused psychological damage,
symptomized by racism, drug abuse, continued antisocial behav-
ior, and diagnosed mental illness. Sturzenegger himself testified
to bad acts that he had committed after the alleged abuse, claim-
ing they had been caused by moore. Evidence of Sturzenegger’s
conduct before and around the time of the alleged incident was
relevant to rebut Sturzenegger’s claim. Evidence of a plaintiff’s
prior bad acts may be admitted, pursuant to rule 404(2), where
it rebuts the plaintiff’s evidence of damages.41 the district court
in this case did not abuse its discretion in concluding that, gen-
erally, the evidence at issue was independently relevant to the
issue of Sturzenegger’s damages.
[27,28] Nor does rule 608 bar admission of the evidence.
given the theory on which the evidence at issue was admitted,
rule 404, and not rule 608, provides the framework for deter-
mining its admissibility. Whether rule 404(2) or rule 608(2)
applies to the admissibility of other-acts evidence depends on
the purpose for which the proponent introduced the other-acts
evidence.42 Rule 404(2) applies when extrinsic evidence is
offered as relevant to a material issue in the case.43 Rule 608(2)
39 See Sanchez, supra note 37.
40 Compare id.
41 See, e.g., Lounds v. Torres, 217 Fed. Appx. 755 (10th Cir. 2007); Burke v.
Spartanics, Ltd., 252 F.3d 131 (2d Cir. 2001); Udemba v. Nicoli, 237 F.3d
8 (1st Cir. 2001); Lewis v. District of Columbia, 793 F.2d 361 (D.C. Cir.
1986); Fletcher v. City of New York, 54 F. Supp. 2d 328 (S.D.N.y. 1999).
Cf. Rawlings v. Andersen, 195 Neb. 686, 240 N.W.2d 568 (1976).
42 See U.S. v. Morgan, 505 F.3d 332 (5th Cir. 2007).
43 See id.
346 	276 NEBRASkA REPoRtS

applies when extrinsic evidence is offered to impeach a witness,
to show the character of the witness for untruthfulness—in other
words, where the only theory of relevance is impeachment by
prior misconduct.44 So, because rule 608(2) affects only evidence
of prior instances of conduct when properly relevant solely for
the purpose of attacking or supporting a witness’ credibility, it
in no way affects the admission of evidence of such prior acts
for other purposes under rule 404(2).45
[29] thus, the application of rule 608(2) to exclude extrinsic
evidence of a witness’ conduct is limited to instances where
the evidence is introduced to show a witness’ general character
for truthfulness.46 Evidence relevant to a material issue is not
rendered inadmissible because it happens to include references
to specific bad acts of a witness, and such evidence should be
admitted where it is introduced to disprove a specific fact mate-
rial to the case.47 Rule 608(2) does not bar evidence introduced
to contradict—and which the jury might find to disprove—a wit-
ness’ testimony as to a material issue of the case.48
[30] And in this case, as already explained, the evidence at
issue was relevant to the issues of Sturzenegger’s bias against
moore and Sturzenegger’s alleged damages. First, the self-
interest of a witness, as opposed to his general character, is not a
collateral issue. Evidence that happens to include prior miscon-
duct may still be admissible when offered to show the witness’
possible bias or self-interest in testifying.49 And Sturzenegger’s
damages were obviously at issue. thus, although some of the
evidence certainly reflected on Sturzenegger’s credibility, the
44 See, id.; U.S. v. Chu, 5 F.3d 1244 (9th Cir. 1993), citing 3 Jack B. Weinstein
& margaret A. Berger, Weinstein’s Evidence ¶ 608[5] (1993).
45 See U.S. v. Farias-Farias, 925 F.2d 805 (5th Cir. 1991).
46 Id.
47 See, U.S. v. Calle, 822 F.2d 1016 (11th Cir. 1987); United States v. Opager,
589 F.2d 799 (5th Cir. 1979).
48 See Calle, supra note 47.
49 See id. Cf. Davis v. Alaska, 415 u.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347
(1974).
StuRzENEggER v. FAthER FLANAgAN’S BoyS’ homE 	347
Cite as 276 Neb. 327

evidence was independently relevant for a proper purpose.50 For
the same reasons, Sturzenegger’s argument under rule 609 is
equally unavailing.51
generally, an appellate court gives wide latitude to the trial
judge in determining the admissibility of evidence, because the
trial judge is in the best position to assess the impact and effect of
evidence based upon what the trial judge perceives from the live
proceedings of a trial, while the appellate court can review only
a cold record.52 In this case, given the unique allegations made
by Sturzenegger, and with due deference to the district court’s
exercise of its discretion, we find no abuse of such discretion
in the court’s admission of evidence relating to Sturzenegger’s
conduct and misconduct before the alleged abuse.
Sturzenegger also argues that he was improperly cross-
examined about incidents which were not corroborated by later
evidence—specifically, an instance of animal cruelty and evi-
dence of Sturzenegger’s conduct in middle school. But the fact
that extrinsic evidence was not presented to prove the basis
for a cross-examination question does not make the question
improper—quite the opposite. Although not precisely appli-
cable to the unique issues presented by this case, Neb. Evid.
R. 405(1)53 and rule 608(2) expressly contemplate that specific
incidents of a witness’ conduct may be inquired into on cross-
examination without proof by extrinsic evidence. In fact, under
those circumstances, extrinsic evidence may be inadmissible,
and the cross-examiner may be “stuck” with the answer given
by the witness.54
In this case, Boys town directly asked Sturzenegger about
certain misconduct and Sturzenegger was able to either explain
or deny it. Boys town was not required to prove the basis for
50 See U.S. v. Blum, 62 F.3d 63 (2d Cir. 1995). See, also, U.S. v. Gray, 24 Fed.
Appx. 358 (6th Cir. 2001); U.S. v. Brassard, 212 F.3d 54 (1st Cir. 2000).
51 See U.S. v. Soria, 965 F.2d 436 (7th Cir. 1992).
52 Stumpf v. Nintendo of America, 257 Neb. 920, 601 N.W.2d 735 (1999).
53 Neb. Rev. Stat. § 27-405(1) (Reissue 1995).
54 See State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003), disapproved on
other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
348 	276 NEBRASkA REPoRtS

those questions, and the district court did not abuse its discretion
in permitting them to be asked.
[31] Finally, Sturzenegger argues that he was improperly
cross-examined with respect to inconsistent factual allegations
in his superseded pleadings. We disagree. While a superseded
pleading is no longer a judicial admission, it is admissible as
evidence of the facts alleged therein, and may be introduced
and considered the same as any other evidence.55 the district
court did not err in permitting the pleadings to be admitted into
evidence and in permitting Sturzenegger to be cross-examined
with respect to the inconsistent descriptions of the alleged sexual
abuse that they contained.
For those reasons, we find no merit to Sturzenegger’s assign-
ments of error with respect to character evidence, prior bad acts,
and cross-examination.
daviS’ expert teStimony
[32] Sturzenegger raises two arguments with respect to Davis’
expert testimony. First, Sturzenegger argues that Davis’ opinion
was improperly based upon a personality test conducted by
thurman. In making that argument, Sturzenegger has invoked
Daubert v. Merrell Dow Pharmaceuticals, Inc.,56 and Schafersman
v. Agland Coop.57 under Daubert and Schafersman, the trial
court acts as a gatekeeper to ensure the evidentiary relevance
and reliability of an expert’s opinion.58 this entails a preliminary
assessment of whether the reasoning or methodology underlying
the testimony is valid and whether that reasoning or methodol-
ogy can be applied to the facts in issue.59 In addition, the trial
court must determine if the witness has applied the methodology
in a reliable manner.60
55 See, Whalen v. U S West Communications, 253 Neb. 334, 570 N.W.2d 531
(1997); Sleezer v. Lang, 170 Neb. 239, 102 N.W.2d 435 (1960).
56 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 u.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993).
57 Schafersman, supra note 1.
58 Smith, supra note 27.
59 Id.
60 Id.
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[33] But it is only when a party opposing an expert’s tes-
timony has sufficiently called into question the testimony’s
factual basis, data, principles, or methods, or their application,
that the trial judge must determine whether the testimony has
a reliable basis in the knowledge and experience of the rele-
vant discipline.61 here, the only purported “methodology” that
Sturzenegger challenges is Davis’ use of results from a test that
was administered by another medical professional. Such reli-
ance on another’s work is clearly permissible under the rules of
evidence, so long as the facts or data relied upon are of a type
reasonably relied upon by experts in the particular field.62 And
more to the point, Sturzenegger’s argument does not identify any
methodological defect underlying Davis’ opinion. the court did
not err in permitting Davis to provide expert testimony based, in
part, on tests administered by thurman.
Sturzenegger also argues that Davis’ diagnosis of “malinger-
ing” was an improper opinion on Sturzenegger’s credibility. We
have held that “‘“‘[n]o witness, expert or otherwise, should
be permitted to give an opinion that another mentally and
physically competent witness is telling the truth.’”’”63 But tes-
timony that contradicts that of another witness is not improper.
Sturzenegger testified to the psychological symptoms that he
claimed were caused by moore and adduced expert testimony
opining he suffered from, among other things, posttraumatic
stress disorder. It was not improper for Davis to opine, based
on adequate foundation, that Sturzenegger was not suffering
from those conditions or to offer a different diagnosis to explain
Sturzenegger’s evidence.
If this case involved a physical injury, there would be no
question that expert testimony refuting the plaintiff’s claim
of a physical disability would be admissible. the fact that the
claimed injury in this case is mental does not change the appli-
cable principles of law. having reviewed Davis’ testimony, we
find no error in admitting his opinion regarding Sturzenegger’s
61 See Zimmerman v. Powell, 268 Neb. 422, 684 N.W.2d 1 (2004).
62 See Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 319
(1994).
63 See State v. Archie, 273 Neb. 612, 633, 733 N.W.2d 513, 531 (2007).
350 	276 NEBRASkA REPoRtS

mental condition. We find no merit to Sturzenegger’s assign-
ments of error.
cloSing argument
Sturzenegger argues that several remarks in Boys town’s
closing argument were prejudicial. But Sturzenegger objected
only three times during Boys town’s closing. of the objections
that were made, two were sustained. Sturzenegger did not move
for a mistrial or even ask that the jury be admonished to disre-
gard the remarks. And Sturzenegger did not ask for a mistrial
before the cause was submitted to the jury.
[34,35] Sturzenegger now claims that the court should have
declared a mistrial. But in order to preserve, as a ground of
appeal, an opponent’s misconduct during closing argument, the
aggrieved party must have objected to the improper remarks no
later than at the conclusion of the argument.64 And an aggrieved
party wishing a mistrial because of an opponent’s misconduct
during argument is required to move for such before the cause
is submitted.65 on balance, given Sturzenegger’s failure to object
to nearly all of the remarks about which he complains on appeal
and his failure to make a timely motion for mistrial, we con-
clude that the court did not abuse its discretion in failing to enter
a mistrial.66
In arguing to the contrary, Sturzenegger specifically assigns
error to Boys town’s reference to the potential financial effect of
a million-dollar verdict on Boys town’s juvenile residents. this
remark was certainly improper. But Sturzenegger’s objection to
the remark was immediately sustained. he did not ask for the
jury to be admonished to disregard any financial effect on Boys
town. And Boys town’s general charitable mission was appar-
ent from the evidence presented at trial, even to the extent that
Douglas County jurors could have been expected to not know
about it already.
64 Wendeln v. Beatrice Manor, 271 Neb. 373, 712 N.W.2d 226 (2006); Steele
v. Sedlacek, 267 Neb. 1, 673 N.W.2d 1 (2003); Wolfe v. Abraham, 244 Neb.
337, 506 N.W.2d 692 (1993).
65 Wolfe, supra note 64.
66 See Nichols, supra note 9.
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Cite as 276 Neb. 327

[36,37] A mistrial is appropriate when an event occurs during
the course of a trial which is of such a nature that its damag-
ing effects would prevent a fair trial.67 And in addition to being
timely, a motion for mistrial must be premised upon actual
prejudice, not the mere possibility of prejudice.68 When con-
sidered in context, we cannot conclude that the isolated remark
made by Boys town’s counsel was so prejudicial as to prevent
a fair trial or could not have been cured by the admonition that
Sturzenegger did not request. And when Boys town’s closing
argument is read as a whole, it is admittedly forceful, but not
beyond the realm of acceptable argument, particularly given
Sturzenegger’s general refusal to object. therefore, we find no
merit to Sturzenegger’s assignments of error regarding Boys
town’s closing argument.
inStruction on BreacH oF contract and Warranty
Sturzenegger 	argues 	that 	the 	district 	court 	should 	have
instructed the jury on his theories of recovery for breach of con-
tract and breach of warranty. Sturzenegger argues that breach of
contract was recognized as a theory of recovery under similar
circumstances by this court’s decision in K.M.H. v. Lutheran
Gen. Hosp.69
In K.M.H., a patient sued a hospital after she was sexually
assaulted by a male nurse. We reversed a summary judgment
entered for the hospital, finding that the petition alleged “in
general terms an implied contract, imposing upon the hospital
the duty and obligation to provide plaintiff a private, secure
environment for her care and to protect her privacy, safety,
and security.”70
But unlike K.M.H., this is not an appeal from a summary
judgment. the district court’s decision to refuse Sturzenegger’s
breach of warranty instruction was made after a complete
trial, and based on the evidence presented, we conclude that
Sturzenegger was not prejudiced by the district court’s refusal.
67 Genthon v. Kratville, 270 Neb. 74, 701 N.W.2d 334 (2005).
68 Id.
69 K.M.H. v. Lutheran Gen. Hosp., 230 Neb. 269, 431 N.W.2d 606 (1988).
70 Id. at 272-73, 431 N.W.2d at 608-09.
352 	276 NEBRASkA REPoRtS

[38] to establish reversible error from a court’s failure to give
a requested jury instruction, an appellant has the burden to show
that (1) the tendered instruction is a correct statement of the
law, (2) the tendered instruction was warranted by the evidence,
and (3) the appellant was prejudiced by the court’s failure to
give the requested instruction.71 here, even assuming (without
deciding) that Sturzenegger’s proposed instruction was a cor-
rect statement of the law and warranted by the evidence, there
was no prejudice. Sturzenegger’s evidence did not establish any
basis for awarding damages other than those caused by sexual
abuse. the theory of Boys town’s defense was that the alleged
abuse had not occurred. And Sturzenegger’s testimony did not
establish any duty on the part of Boys town, based in warranty
or contract, that was greater than its duty in tort to prevent
Sturzenegger from being sexually abused.
In short, the evidence did not establish any duty or damages
based on breach of warranty that was not coextensive with those
encompassed by the tort theory on which the jury was instructed.
therefore, Sturzenegger did not show that he was prejudiced by
the court’s refusal of his breach of warranty instruction.
[39] Sturzenegger also argues, briefly, that the court should
have instructed on other theories, such as intentional infliction
of emotional distress. those theories suffer from the same defect
as his breach of warranty argument. Furthermore, Sturzenegger
only assigned as error the court’s refusal of contract and war-
ranty theories. And errors argued but not assigned will not be
considered on appeal.72
For those reasons, we find no merit to Sturzenegger’s assign-
ment of error relating to jury instructions.
cumulative error
Finally, Sturzenegger argues that the cumulative effect of the
district court’s purported errors denied him a fair trial. For the
reasons discussed above with respect to each of Sturzenegger’s
assignments of error, we also find no merit to his claim of cumu-
lative error.
71 Castillo v. Young, 272 Neb. 240, 720 N.W.2d 40 (2006).
72 Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).
StuRzENEggER v. FAthER FLANAgAN’S BoyS’ homE 	353
Cite as 276 Neb. 327

CoNCLuSIoN
For each of the above reasons, we find no error requiring
reversal, and we affirm the judgment of the district court.
aFFirmed .
S tate oF neBraSka , appellant , v .
W illoW t. H ead , appellee .
754 N.W.2d 612
Filed August 8, 2008. 	No. S-07-464.
1. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
2. Judgments: Collateral Attack. A party to a proceeding will be bound by the
judgment in the case when collaterally attacking it, even though the judgment was
irregularly or erroneously entered.
3. Double Jeopardy: Juries: Pleas. A defendant is placed legally in jeopardy when
(1) the jury is impaneled and sworn; (2) a judge, hearing a case without a jury,
begins to hear evidence as to the guilt of the defendant; or (3) the trial court accepts
the defendant’s guilty plea.
Petition for further review from the Court of Appeals, irWin ,
S ieverS, and moore, Judges, on appeal thereto from the District
Court for Douglas County, peter c. B ataillon, Judge. Judgment
of Court of Appeals reversed.
Donald W. kleine, Douglas County Attorney, and James m.
masteller for appellant.
James E. Schaefer and Jill A. Podraza for appellee.
H eavican , 	c.J., 	W rigHt , 	connolly , 	gerrard , 	S tepHan ,
mccormack , and miller -lerman , JJ.
per curiam .
BACkgRouND
Willow t. head pled guilty to, and was convicted of, driving
under the influence of alcohol (DuI) in the district court for
Douglas County. At the enhancement hearing, the State intro-
duced evidence that head had been convicted of DuI offenses
354 	276 NEBRASkA REPoRtS