Wilkins v. Bergstrom

CONCLUSION
After reviewing the record, we conclude that the district
court did not err in denying Blair’s motions for expungement
of the public record and return of his bond money, given
that Blair failed to present sufficient evidence to support his
claims. Therefore, the district court’s order is affirmed in
its entirety.
A ffirmed.
PAmelA S. WilkinS et Al ., APPelleeS, v. richArd f.
BergStrom , m.d., APPellAnt.
767 N.W.2d 136
Filed May 19, 2009. 	No. A-08-801.
1. Jury Instructions: Judgments: Appeal and Error. Whether a jury instruction
given by a trial court is correct is a question of law. When reviewing questions of
law, an appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
2. 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.
3. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the
right to assert prejudicial error on appeal.
4. Jury Instructions: Appeal and Error. The failure to object to instructions after
they have been submitted to counsel for review or to offer more specific instruc-
tions if counsel feels the court-tendered instructions are not sufficiently specific
will preclude raising an objection on appeal, unless there is a plain error indica-
tive of a probable miscarriage of justice.
5. 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.
6. Jury Instructions: Appeal and Error. In reviewing a claim of prejudice from
jury instructions given or refused, an appellate court must read the instructions
together, and if, taken as a whole, they correctly state the law, are not misleading,
and adequately cover the issues supported by the pleadings and evidence, there is
no prejudicial error.
7. Jury Instructions. The trial court is not required to give a proffered instruction
which unduly emphasizes a part of the evidence in the case.
WILkINS v. BergSTrOM 	615
Cite as 17 Neb. App. 615
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www.nebraska.gov/apps-courts-epub/
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8. Judges: Jury Trials: Witnesses: Evidence. Judges should be careful in jury
trials and refrain from commenting upon witnesses or their testimony, for each
party is entitled to have the jury pass upon the evidence without having its effect
or importance altered, either as to credibility or value.
9. Motions for New Trial: Appeal and Error. A motion for new trial is to be
granted only when error prejudicial to the rights of the unsuccessful party
has occurred.
Appeal from the District Court for Dodge County: John e.
SAmSon, Judge. Affirmed.
earl g. greene III, of Pansing, Hogan, ernst & Bachman,
L.L.P., for appellant.
Matthew A. Lathrop and kate e. Placzek for appellees.
inBody, Chief Judge, and SieverS and cASSel, Judges.
cASSel, Judge.
INTrODUCTION
richard F. Bergstrom, M.D., appeals from a jury verdict
awarding damages to Pamela S. Wilkins in a medical malprac-
tice case. The district court refused Bergstrom’s requested jury
instruction addressing Bergstrom’s purported admission that he
“made a mistake.” Because Bergstrom’s proffered instruction
was sufficiently covered in the instructions given to the jury
and unduly emphasized a portion of the evidence, we affirm the
district court’s refusal to give the requested instruction.
BACkgrOUND
Pamela and Donald r. Wilkins filed a complaint alleging
that Bergstrom negligently injured Pamela during the per-
formance of a right carpal tunnel release procedure and that
Donald suffered loss of consortium. Specifically, the complaint
alleged that Bergstrom was negligent in causing a laceration of
the median nerve.
At trial, Donald testified that after Pamela’s surgery, he asked
Bergstrom how the procedure went. According to Donald,
Bergstrom responded: “‘Not good, I made a mistake, I cut the
median nerve.’”
At the conclusion of trial, the court conducted a jury instruc-
tion conference. Prior to the instruction conference, the court
616 	17 NeBrASkA APPeLLATe rePOrTS

submitted its proposed instructions to the parties. On the
day of the conference, Bergstrom submitted a proposed jury
instruction which read as follows: “You have heard testimony
that . . . Bergstrom reportedly told [Donald] that he, . . .
Bergstrom, ‘made a mistake.’ You are instructed that the word
[‘]mistake’ is not synonymous with negligence.”
At the instruction conference, the court first dealt with the
matter of the parties’ additional requested instructions. The
court heard the parties’ arguments on the parties’ proposed
instructions and made explicit rulings on each instruction. The
court refused Bergstrom’s proposed instruction at issue in the
instant appeal. The court subsequently read through its own
proposed instructions and offered the parties an opportunity
to object to these instructions. Bergstrom did not object to the
court’s proposed instructions as being inconsistent with his
proposed instruction.
The court submitted the case to the jury, which returned
a verdict for Pamela in her negligence claim in the amount
of $175,000. The jury found for Bergstrom as to Donald’s
claim.
Bergstrom timely appeals.
ASSIgNMeNTS OF errOr
Bergstrom assigns that the district court erred in (1) refus-
ing to give his proposed jury instruction and (2) overruling his
motion for a new trial in which he alleged that the court erred
in refusing to give his proposed jury instruction.
STANDArD OF reVIeW
[1] Whether a jury instruction given by a trial court is cor-
rect is a question of law. When reviewing questions of law,
an appellate court has an obligation to resolve the questions
independently of the conclusion reached by the trial court.
Karel v. Nebraska Health Sys., 274 Neb. 175, 738 N.W.2d
831 (2007).
[2] 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. Sturzenegger v. Father Flanagan’s
Boys’ Home, 276 Neb. 327, 754 N.W.2d 406 (2008).
WILkINS v. BergSTrOM 	617
Cite as 17 Neb. App. 615

ANALYSIS
Preservation of Error.
[3] Pamela and Donald argue that Bergstrom failed to pre-
serve the assigned error regarding his proposed jury instruction
for purposes of this appeal by failing to make a proper objec-
tion. Failure to make a timely objection waives the right to
assert prejudicial error on appeal. Shipler v. General Motors
Corp., 271 Neb. 194, 710 N.W.2d 807 (2006). Pamela and
Donald assert that in order to preserve any error related to the
court’s failure to give his proposed jury instruction, Bergstrom
had to object to the court’s refusal to adopt his proposed
instruction at the instruction conference after the court had
already explicitly ruled on the instruction. However, we con-
clude that because Bergstrom raised the issue of his proposed
instruction at the instruction conference and the district court
engaged in an extended colloquy with counsel regarding its
merits, Bergstrom preserved the issue of his proposed jury
instruction for this appeal.
[4] We first consider what is required to preserve the issue
of a jury instruction in the context of the instant case. Failure
to object to a jury instruction after it has been submitted to
counsel for review precludes raising an objection on appeal
absent plain error. Houston v. Metrovision, Inc., 267 Neb.
730, 677 N.W.2d 139 (2004); Olson v. Sherrerd, 266 Neb.
207, 663 N.W.2d 617 (2003). Sometimes, this rule has been
stated another way: The failure to object to instructions after
they have been submitted to counsel for review or to offer
more specific instructions if counsel feels the court-tendered
instructions are not sufficiently specific will preclude raising an
objection on appeal, unless there is a plain error indicative of a
probable miscarriage of justice. State v. Sanders, 269 Neb. 895,
697 N.W.2d 657 (2005); Ellis & Guy Advg. v. Cohen, 219 Neb.
340, 363 N.W.2d 180 (1985).
Although the second statement of the rule may seem to pro-
vide an additional, inconsistent method of preserving an objec-
tion—by offering more specific instructions—both statements
of the rule are consistent. Offering more specific instructions at
the conference is a method of objecting to the court’s instruc-
tions as insufficient.
618 	17 NeBrASkA APPeLLATe rePOrTS

Pamela and Donald rely upon Olson v. Sherrerd, supra, and
Farmers Mut. Ins. Co. v. Kment, 265 Neb. 655, 658 N.W.2d
662 (2003), to support the proposition that Bergstrom failed to
preserve the claimed error. However, in both of these cases, the
party requesting an instruction filed the requested instruction
but failed to mention the requested instruction at the instruc-
tion conference. Thus, in both instances, the requesting party
failed to object to the instructions in any manner calculated to
make the trial court aware that the party was objecting to the
omission. In the instant case, however, unlike the situations in
both Olson and Farmers Mut. Ins. Co., Bergstrom specifically
raised the issue of the proposed instruction at the instruction
conference, the parties made extended arguments regarding the
instruction, and the court explicitly refused to give the instruc-
tion. Bergstrom thereby called to the court’s attention the omit-
ted language.
Further, Bergstrom’s action fulfilled the general objective set
forth in Farmers Mut. Ins. Co. v. Kment, supra. As the Nebraska
Supreme Court explained, “The purpose of the instruction
conference is to give the trial court an opportunity to correct
any errors being made by it. Consequently, the parties should
object to any errors of commission or omission.” Id. at 659,
658 N.W.2d at 666-67. Consideration of Bergstrom’s requested
instruction at the instruction conference provided the court a
full opportunity to correct what Bergstrom claimed to be an
error of omission of the requested instruction.
We therefore conclude that the totality of Bergstrom’s actions
during the instruction conference constituted a sufficient objec-
tion to the omission of the requested language in the court’s
proposed jury instructions. Pamela and Donald’s argument
would exalt form over substance and require the recitation of
“magic words” despite a specific request, discussion, and rul-
ing. We find no merit to this argument.
Proposed Instruction.
[5] Bergstrom argues that the district court erred in refus-
ing to give his proposed instruction. To establish reversible
error from a court’s failure to give a requested jury instruc-
tion, an appellant has the burden to show that (1) the tendered
WILkINS v. BergSTrOM 	619
Cite as 17 Neb. App. 615

instruction is a correct statement of the law, (2) the tendered
instruction was warranted by the evidence, and (3) the appel-
lant was prejudiced by the court’s failure to give the requested
instruction. Sturzenegger v. Father Flanagan’s Boys’ Home,
276 Neb. 327, 754 N.W.2d 406 (2008).
Bergstrom argues that pursuant to Keys v. Guthmann, 267
Neb. 649, 676 N.W.2d 354 (2004), and Fossett v. Board of
Regents, 258 Neb. 703, 605 N.W.2d 465 (2000), his proposed
jury instruction was a correct statement of law. We note that in
Fossett, the court stated that “[a] mistake is not synonymous
with negligence,” 258 Neb. at 711, 605 N.W.2d at 471, and
that in Keys, the court approved this language in Fossett. In
both cases, the court held that a physician’s alleged admis-
sion of a mistake, standing alone, is not sufficient to rebut the
presumption against negligence created on summary judgment
by the physician’s affidavit stating that he did not breach the
appropriate standard of care. For purposes of this appeal, we
will assume without deciding that Bergstrom’s proposed jury
instruction was a correct statement of the law.
The 	second 	requirement—that 	the 	tendered 	instruction
was warranted by the evidence—was clearly established in
the record. The requested instruction was based directly on
Donald’s testimony.
[6] However, Bergstrom cannot show that the court’s failure
to give this instruction was prejudicial. In reviewing a claim
of prejudice from jury instructions given or refused, an appel-
late court must read the instructions together, and if, taken as
a whole, they correctly state the law, are not misleading, and
adequately cover the issues supported by the pleadings and evi-
dence, there is no prejudicial error. Karel v. Nebraska Health
Sys., 274 Neb. 175, 738 N.W.2d 831 (2007). Bergstrom does
not contend that the court’s instructions on negligence were an
incorrect statement of the law or were misleading. Bergstrom
contends only that the court’s instructions did not adequately
cover the issues. We disagree because the district court pro-
vided the jury with adequate instructions on negligence and
Bergstrom’s requested instruction would unduly emphasize a
portion of the evidence.
620 	17 NeBrASkA APPeLLATe rePOrTS

First, Bergstrom does not claim that the district court failed
to provide adequate instructions on negligence in general. We
have reviewed the record and found that the court gave appro-
priate instructions on negligence that were based on the second
edition of the Nebraska Jury Instructions. Among other things,
the jury was instructed on the “Function of Judge, Jury, and
Counsel,” pursuant to NJI2d Civ. 1.01; negligence in general,
pursuant to an instruction nearly identical to NJI2d Civ. 2.01;
the duty of a professional, pursuant to NJI2d Civ. 12.04; bur-
den of proof, pursuant to NJI2d Civ. 2.12A; proximate cause,
pursuant to NJI2d Civ. 3.41; evidence, pursuant to NJI2d
Civ. 1.02 and 1.31; and “evaluation of Testimony—Credibility
of Witnesses” pursuant to NJI2d Civ. 1.41. Bergstrom does
not argue that these instructions were inappropriate in the
instant case, but instead claims that the district court was
required to give a special instruction to explain the effect of
his statement.
[7] The trial court is not required to give a proffered instruc-
tion which unduly emphasizes a part of the evidence in the
case. First Mid America, Inc. v. Palmer, 197 Neb. 224, 248
N.W.2d 30 (1976). In First Mid America, Inc., the Nebraska
Supreme Court upheld a trial court’s decision to reject a prof-
fered instruction because the instruction unduly emphasized a
portion of the evidence even though it implicitly determined
that the instruction was a correct statement of the law and was
applicable to the facts. The plaintiff proposed a jury instruction
which stated that the defendant’s failure to read the customer
agreement that he signed did not relieve the defendant of the
“‘obligations’” or “‘consequences’” imposed by the docu-
ments. 197 Neb. at 235, 248 N.W.2d at 37. The Supreme Court
agreed with the rejection of the instruction because the agree-
ment at issue in the case consisted of both written and oral
understandings and the instruction drew undue attention to the
written customer agreement.
In the instant case, the proposed instruction likewise placed
too much focus on one portion of the evidence. The instruction
would have stated that one particular piece of evidence did not
constitute negligence. However, the overall question for the
WILkINS v. BergSTrOM 	621
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jury was whether the totality of the evidence presented at trial
established that Bergstrom was negligent by a preponderance
of the evidence. In addition to Bergstrom’s statement, there
was a significant amount of evidence adduced at trial regarding
negligence—including expert testimony. If the court had given
Bergstrom’s proposed instruction, it would have distracted the
jury from the overall inquiry at hand.
[8] In addition, by giving Bergstrom’s proposed instruction,
the court would have ventured into the area of commenting
on the evidence, which is a practice that has been strongly
discouraged. Judges should be careful in jury trials and refrain
from commenting upon witnesses or their testimony, for each
party is entitled to have the jury pass upon the evidence with-
out having its effect or importance altered, either as to credi-
bility or value. Styskal v. Brickey, 158 Neb. 208, 62 N.W.2d
854 (1954).
New Trial.
[9] Because the district court did not err in failing to give
Bergstrom’s proposed instruction, the court did not abuse
its discretion in denying Bergstrom’s motion for a new trial
which was made on the same basis. A motion for new trial
is to be granted only when error prejudicial to the rights of
the unsuccessful party has occurred. Bradley T. & Donna T.
v. Central Catholic High Sch., 264 Neb. 951, 653 N.W.2d
813 (2002).
CONCLUSION
Because Bergstrom’s proposed jury instruction addressed
a subject adequately covered by the instructions given and
unduly emphasized a portion of the evidence, we affirm the
district court’s decision to reject the instruction.
A ffirmed.
622 	17 NeBrASkA APPeLLATe rePOrTS