Tolliver v. Visiting Nurse Assn.

Patricia c. tolliver and Betsye s. M anser , individually
and as coPersonal rePresentatives of the estate of
frances l. tolliver , deceased, aPPellants , v.
visiting nurse association of the M idlands ,
a neBraska corPoration, et al ., aPPellees.
771 N.W.2d 908
Filed September 11, 2009. 	No. S-08-357.
1. Damages. While the amount of damages presents a question of fact, the proper
measure of damages presents a question of law.
2. Appeal and Error. An appellate court resolves questions of law independently of
the determination reached by the court below.
3. Expert Witnesses: Testimony: Appeal and Error. An appellate court reviews
for abuse of discretion a trial court’s decision whether to admit or exclude an
expert’s testimony under the appropriate standards.
4. Fraud. Although fraud is often a component of other torts, including torts involv-
ing negligent conduct, the distinct tort of fraud or misrepresentation is generally
an economic tort against financial interests, asserted to recover pecuniary loss.
5. Fraud: Liability: Damages. One who makes a fraudulent or negligent misrep-
resentation in a business transaction is normally liable only for the recipient’s
pecuniary losses.
6. Damages: Words and Phrases. A pecuniary loss is a loss of money or of some-
thing having monetary value.
7. Fraud: Liability: Damages. For misrepresentation claims, a defendant’s liability
for pecuniary losses is generally limited to the plaintiff’s out-of-pocket losses or
sometimes benefit-of-the-bargain losses, depending upon the context and type of
misrepresentation.
8. Damages: Words and Phrases. Economic losses can include more than out-
of-pocket and benefit-of-the-bargain losses. They include monetary losses for
medical expenses, loss of earnings and earning capacity, funeral costs, loss of
use of property, costs of repair or replacement, costs of domestic services, loss
of employment, and loss of business or employment opportunities.
9. ____: ____. Noneconomic losses are nonmonetary losses, which include pain,
suffering, and other losses that cannot be easily expressed in dollars and cents.
10. ____: ____. Pain and suffering are neither a pecuniary loss nor an eco-
nomic loss.
11. Damages. A party may not have double recovery for a single injury or be made
more than whole by compensation which exceeds the actual damages sustained.
12. Jury Instructions: Appeal and Error. 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.
13. Appeal and Error. An issue not presented to or passed on by the trial court is not
appropriate for consideration on appeal.
14. Trial: Evidence: Appeal and Error. To constitute reversible error in a civil case,
a trial court’s admission or exclusion of evidence must unfairly prejudice a sub-
stantial right of the litigant complaining about the ruling.
532 	278 NEbrASkA rEPOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

15. ____: ____: ____. When substantially similar evidence is admitted without objec-
tion, an improper exclusion of evidence is ordinarily not prejudicial.
Appeal from the District Court for Douglas County: sandra
l. dougherty, Judge. Affirmed.
David A. Domina and Linda S. Christensen, of Domina Law
Group, P.C., L.L.O., for appellants.
David L. Welch and Lisa M. Meyer, of Pansing, Hogan,
Ernst & bachman, L.L.P., for appellees.
heavican, c.J., Wright, connolly, gerrard, stePhan, and
MccorMack , JJ.
connolly, J.
SUMMArY
The appellants, Patricia C. Tolliver and betsye S. Manser,
are the daughters of Frances L. Tolliver and the copersonal rep-
resentatives of Frances’ estate (collectively the estate). Frances
died while residing at Hospice House. The estate sought dam-
ages for Frances’ pain and suffering while residing there. It
sued Hospice House; the Visiting Nurse Association (VNA),
which provided hospice care in a joint venture with Hospice
House; and Tiki Mumm, a registered nurse who worked for the
VNA. The estate alleged that Hospice House was negligent in
caring for Frances and that it misrepresented the type of care
she would receive. The district court directed a verdict against
the estate’s misrepresentation claims because it concluded that
in a fraud action, the damages are limited to pecuniary losses.
On the negligence claim, the jury awarded the estate $12,500
in damages.
The estate asks this court to adopt the restatement (Second)
of Torts § 557A.1 It contends that adopting § 557A would allow
a party who is physically harmed by a defendant’s misrepresen-
tation to recover noneconomic damages. In addition, the estate
claims that the trial court erred in excluding the testimony of
one of its medical experts. We decline to adopt § 557A because
the damages the estate seeks were available under its negligence
1 restatement (Second) of Torts § 557A (1977).
TOLLIVEr v. VISITING NUrSE ASSN. 	533
Cite as 278 Neb. 532

theory. We further conclude that the excluded expert testimony
was cumulative to other experts’ testimony. We affirm.
bACkGrOUND
In 2004, at the age of 85, Frances was terminally ill with
cancer. 	Her 	physician 	ordered 	hospice 	care 	for 	Frances.
She chose to have the VNA provide hospice care for her at
Hospice House.
In 2004, Hospice House was licensed to provide assisted
living services, not inpatient hospice services. There is a dif-
ference. An assisted living facility provides supportive services
for a person’s comfort, personal care, and daily living and
health maintenance activities.2 In contrast, hospice service is
defined as “a person or any legal entity which provides home
care, palliative care, or other supportive services to terminally
ill persons and their families.”3
Hospice House represented in its brochure that it provided
licensed practical nurses, certified nursing assistants, and vol-
unteers “in conjunction with a Hospice Team.” Hospice House
required its residents to select from the VNA, “Methodist,” or
“Alegent” as their hospice agency or team. Hospice House’s
service agreement required residents to agree that they were
choosing palliative, not curative, care. residents also agreed
that after they consulted with their physician, the chosen
hospice agency would provide their professional medical and
nursing services; these services included a registered nurse as
a case manager. Each resident agreed to be transferred to an
appropriate place if the resident’s needs exceeded services pro-
vided by Hospice House staff or the resident’s chosen agency.
Neither the Hospice House brochure nor the service agreement
explicitly stated whether registered nurses were present daily to
assess or care for patients at Hospice House. The daughters tes-
tified that Frances and they believed the care at Hospice House
would include registered nurses because of these documents
and the Hospice House director’s statements.
2 See Neb. rev. Stat. § 71-406 (reissue 2003).
3 See Neb. rev. Stat. § 71-418 (reissue 2003).
534 	278 NEbrASkA rEPOrTS

The VNA provided hospice care for Frances in her home
until a room became available at Hospice House. She was a
patient at Hospice House for 23 days, from June 9 until July 1,
2004, the day she died.
the coMPlaint
In September 2006, the estate filed its operative complaint.
It generally alleged that Hospice House had misrepresented
that trained professionals would be providing hospice care.
It also alleged that Frances and her daughters had reasonably
relied on these misrepresentations.
The estate first claimed negligence against all defendants.
Specifically, it made the following allegations: (1) In October
2004, the Nebraska Department of Health and Human Services
had responded to its complaint and determined that the Hospice
House staff had failed to follow Frances’ physician’s plan of
care for Frances; (2) Frances had suffered excruciating pain
from June 27 until her death on July 1 because the defendants
had wrongfully withheld pain medications; (3) the final 22
days of Frances’ life “were filled with unnecessary and avoid-
able distress, discomfort and pain because of the inappropriate
and insufficient care she received”; (4) Mumm’s negligence
was imputed to the VNA and Hospice House under the doctrine
of respondeat superior; and (5) the VNA and Hospice House
were independently negligent in failing to appropriately train
and supervise their personnel.
The estate also labeled its second claim “negligence,” but
we interpret the allegations as stating a claim for negligent
misrepresentation. For this claim, the estate made these allega-
tions: (1) The VNA and Hospice House had breached a duty to
truthfully disclose that Hospice House was credentialed as an
assisted living facility, and Hospice House had misrepresented
that the defendants provided skilled hospice care for dying per-
sons; (2) the defendants had breached a duty to disclose that
Hospice House did not train its staff in the acute care of dying
persons; (3) the defendants had misled the public by holding
Hospice House out as a hospice care facility; and (4) Frances
and her daughters had relied on its misrepresentations to their
detriment. The estate’s third claim alleged the same facts but
claimed that the misrepresentation was intentional.
TOLLIVEr v. VISITING NUrSE ASSN. 	535
Cite as 278 Neb. 532

trial
At trial, much of the estate’s evidence focused on the con-
duct of Mumm. On July 27, 2004, without observing Frances,
Mumm instructed the Hospice House staff to withhold one of
Frances’ pain medications and to reduce another. Two medical
experts testified that Mumm’s conduct in changing Frances’
physician’s orders for medications fell below the standard
of caring for dying patients who have chosen palliative care.
They also testified that Mumm’s conduct had caused Frances
to experience increased and severe pain. One of these experts
was Frances’ niece, Mary kay Gamble. Gamble is a regis-
tered nurse and nurse practitioner, with a master’s degree in
geriatric nursing and expertise in hospice care. She had stayed
with the family for several nights before Frances’ death. She
testified that she observed the following additional nurs-
ing deficiencies in Frances’ care: (1) poor pain assessments;
(2) poor administration of liquid narcotics, so that Frances
drooled out most of her medication; and (3) poor reposition-
ing of Frances.
The court excluded part of the testimony from a third expert,
James Dube, Ph.D. Dube has a doctorate in pharmacy. He
testified that the nurses had failed to consult with Frances’
physician regarding changes to her condition and medications.
The court also allowed him to testify that the nurses did not
give Frances adequate amounts of medication. but the court
excluded his opinion that Frances had suffered increased pain
because the nurses had not given the prescribed amount of
pain medication.
After the estate rested, the defendants moved for a directed
verdict and a dismissal of all claims. In addition to arguing
that the evidence was insufficient to submit the claims to the
jury, the defendants argued that the law limited damages for
both negligent and fraudulent misrepresentation to pecuni-
ary loss. They contended that the estate had failed to show
pecuniary damages. The estate responded that because of the
misrepresentations, Frances had suffered damages that included
conscious pain and suffering. but the court disagreed and con-
cluded that case law limited damages for misrepresentation to
pecuniary loss and that a plaintiff could not recover damages
536 	278 NEbrASkA rEPOrTS

for pain and suffering. It dismissed the negligent and fraudu-
lent misrepresentation claims but overruled the motion regard-
ing the negligence claim.
Jury instructions
At the jury instruction conference, the court determined as
a matter of law that Hospice House and the VNA were joint
venturers. The estate did not object to the jury instructions, but
it preserved its argument regarding the court’s order dismissing
its misrepresentation claims.
The instructions included an uncontroverted facts section.
This section informed the jury that Frances’ physician had
developed a plan of care for Frances that included pain man-
agement through prescription drugs. It further stated that the
VNA and Hospice House were to use this plan for Frances’
hospice and palliative care. Finally, this section stated that on
June 27, 2004, Mumm had instructed the Hospice House staff
to withhold a narcotic skin patch from Frances and instead
administer a liquid narcotic medication.
regarding the estate’s claims, instruction No. 2 stated that
the estate claimed Mumm was professionally negligent and had
caused Frances pain and suffering through the following con-
duct: (1) failing to follow Frances’ plan of care and instruct-
ing the Hospice House staff to withhold a narcotic skin patch,
without obtaining a physician’s order and without observing
Frances; (2) failing to understand the absorption properties
of the skin patch; (3) failing to discuss changes in Frances’
pain medications with her family; and (4) using only the liq-
uid narcotic medication to treat Frances and failing to use the
maximum dose permitted. regarding the VNA’s liability, the
instruction stated that the estate claimed Mumm’s negligence
was imputed to the VNA as Mumm’s employer. regarding
Hospice House’s liability, the instruction stated that the estate
claimed Mumm’s negligence was imputed to Hospice House as
a joint venturer with the VNA.
In short, the instructions tied each defendant’s negligence
liability to Mumm’s conduct on or after June 27, 2004, instead
of Hospice House’s conduct during the entire time Frances
resided at Hospice House. Instruction No. 9 specifically stated
TOLLIVEr v. VISITING NUrSE ASSN. 	537
Cite as 278 Neb. 532

that if the jury found that Mumm was liable, then the VNA and
Hospice House were also liable.
regarding damages, instruction No. 11 informed the jurors
that if they returned a verdict for the plaintiffs, they should
consider only those things proximately caused by the defend-
ants’ negligence. The only item listed for consideration was
“[t]he reasonable value of the physical pain and mental suffer-
ing experienced by Frances . . . , the Deceased, during her time
at Hospice House.”
ASSIGNMENTS OF ErrOr
The estate assigns three errors:
(1) The district court erred in sustaining the defendants’
motion to dismiss the estate’s intentional misrepresentation and
concealment claims.
(2) The district court erred in sustaining the defendants’
motion to dismiss the estate’s negligent misrepresentation and
concealment claims.
(3) 	The 	district 	court 	erred 	in 	excluding 	the 	estate’s
expert’s testimony.
STANDArD OF rEVIEW
[1-3] While the amount of damages presents a question
of fact, the proper measure of damages presents a question
of law.4 We resolve questions of law independently of the
determination reached by the court below.5 And we review
for abuse of discretion a trial court’s decision whether to
admit or exclude an expert’s testimony under the appropri-
ate standards.6
4 See, e.g., Toscano v. Greene Music, 124 Cal. App. 4th 685, 21 Cal. rptr.
3d 732 (2004); Jackson v. Morse, 152 N.H. 48, 871 A.2d 47 (2005).
Compare, Amanda C. v. Case, 275 Neb. 757, 749 N.W.2d 429 (2008);
Braesch v. Union Ins. Co., 237 Neb. 44, 464 N.W.2d 769 (1991), disap-
proved on other grounds, Wortman v. Unger, 254 Neb. 544, 578 N.W.2d
413 (1998).
5 Evertson v. City of Kimball, ante p. 1, 767 N.W.2d 751 (2009).
6 See King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762
N.W.2d 24 (2009).
538 	278 NEbrASkA rEPOrTS

ANALYSIS
fraudulent and negligent M isrePresentation claiMs
The estate contends that the court erred when it dismissed
the estate’s claims for intentional misrepresentation and inten-
tional concealment and its claims for negligent misrepresenta-
tion and negligent concealment.
In its brief, the estate synonymously uses the terms “misrep-
resentation” and “concealment.” It has not cited any authority
recognizing a claim of “negligent concealment” in a commer-
cial context.7 It is true that we have recognized a claim for fraud-
ulent concealment in a business transaction.8 but the estate did
not allege separate claims of misrepresentation and conceal-
ment, nor did the court interpret the estate’s complaint as alleg-
ing separate claims. And so we will consider only whether the
court’s order dismissing the estate’s claims for fraudulent and
negligent misrepresentation was reversible error.
[4-7] Although fraud is often a component of other torts,
including torts involving negligent conduct, the distinct tort
of fraud or misrepresentation is generally an economic tort
against financial interests, asserted to recover pecuniary loss.9
One who makes a fraudulent or negligent misrepresentation in
a business transaction is normally liable only for the recipient’s
pecuniary losses.10 And a pecuniary loss is a “loss of money or
of something having monetary value.”11 For misrepresentation
claims, a defendant’s liability for pecuniary losses is generally
limited to the plaintiff’s out-of-pocket losses or sometimes
7 Compare Nelson v. Cheney, 224 Neb. 756, 401 N.W.2d 472 (1987).
8 See Streeks v. Diamond Hill Farms, Inc., 258 Neb. 581, 605 N.W.2d 110
(2000).
9 See, United States v. Neustadt, 366 U.S. 696, 81 S. Ct. 1294, 6 L. Ed. 2d
614 (1961); Walsh v. Ingersoll-Rand Co., 656 F.2d 367 (8th Cir. 1981);
Doe v. Dilling, 228 Ill. 2d 324, 888 N.E.2d 24, 320 Ill. Dec. 807 (2008); 2
Dan b. Dobbs, Law of remedies § 9.1 (1993); restatement, supra note 1,
ch. 22, scope note.
10 See, Walsh, supra note 9; Washington Mut. Bank v. Advanced Clearing,
Inc., 267 Neb. 951, 679 N.W.2d 207 (2004); Harsche v. Czyz, 157 Neb.
699, 61 N.W.2d 265 (1953); restatement, supra note 1, §§ 546 and 549.
11 black’s Law Dictionary 1030 (9th ed. 2009).
TOLLIVEr v. VISITING NUrSE ASSN. 	539
Cite as 278 Neb. 532

benefit-of-the-bargain losses, depending upon the context and
type of misrepresentation.12 but the estate argues that permit-
ting plaintiffs to recover only pecuniary losses for a misrep-
resentation claim is contrary to § 557A of the restatement
which provides: “One who by a fraudulent misrepresentation
or nondisclosure of a fact that it is his duty to disclose causes
physical harm to the person or to the land or chattel of another
who justifiably relies upon the misrepresentation, is subject to
liability to the other.”13
Section 557A clearly imposes liability for physical harm
caused by a person’s fraudulent misrepresentation or non-
disclosure. but it leaves open important questions: For what
loss is the defendant liable? Is liability limited to pecuniary
losses? We conclude that when read consistently with its com-
ments and other restatement sections, § 557A provides scant
support for permitting noneconomic damages.
Section 557A first appeared in the 1965 tentative draft of the
restatement.14 In a note to that tentative draft, the American
Law Institute authors stated that this section was added to
permit parties to maintain an action for deceit when a misrep-
resentation results in physical harm. but the authors have also
stated that § 557A is subject to the rules for fraudulent mis-
representations stated in §§ 525 to 551, except for § 548A.15
Section 548A is not applicable to our analysis. Section 549,
however, does apply to claims under § 557A. Section 549 sets
out the measure of damages for fraudulent misrepresentations.
It limits a plaintiff’s recovery to pecuniary losses. And pain
and suffering are not a component of pecuniary loss.
It does appear that the American Law Institute authors
intended to impose greater liability on defendants when their
fraudulent misrepresentations result in physical harm. The
restatement’s § 525 states the liability rule for fraudulent
12 See, Streeks, supra note 8; Burke v. Harman, 6 Neb. App. 309, 574 N.W.2d
156 (1998). See, also, Dobbs, supra note 9, § 9.2(2).
13 restatement, supra note 1, § 557A at 149.
14 See restatement (Second) of Torts (Tentative Draft No. 11, 1965).
15 See, id.; restatement, supra note 1, § 557A, comment a.
540 	278 NEbrASkA rEPOrTS

misrepresentations. but comment h. states that this is not the
liability rule when a misrepresentation causes physical harm
and refers the reader to § 557A. In distinguishing between the
pecuniary losses permitted under § 525 and the general eco-
nomic losses permitted under § 557A, comment h. provides
in part:
This Section (and this Chapter) covers pecuniary loss
resulting from a fraudulent misrepresentation, and not
physical harm resulting from the misrepresentation. As
to the latter, see § 557A, which also covers the economic
loss deriving from the physical harm. This type of eco-
nomic loss is not intended to be included in the term,
pecuniary loss, as used in this Chapter.16
Comment a. to § 557A similarly provides that when physi-
cal harm occurs to a person, land, or chattel because of a
person’s justifiable reliance on a fraudulent misrepresentation,
the defendant’s “liability also extends to the economic loss
resulting from the physical harm.”17 by including liability for
economic loss, the authors apparently meant that a defendant
would be liable for the pecuniary loss normally allowed for
misrepresentations and for other, additional economic losses.
[8-10] Economic losses can include more than out-of-pocket
and benefit-of-the-bargain losses. They include monetary losses
for medical expenses, loss of earnings and earning capacity,
funeral costs, loss of use of property, costs of repair or replace-
ment, costs of domestic services, loss of employment, and
loss of business or employment opportunities.18 but economic
losses are still monetary losses. And nothing in § 557A or its
comments extends a defendant’s liability for a fraudulent mis-
representation to noneconomic losses. In contrast to economic
losses, noneconomic losses are nonmonetary losses, which
include pain, suffering, and other losses that cannot be easily
16 See restatement, supra note 1, § 525, comment h. at 58.
17 See id., § 557A at 149.
18 See Neb. rev. Stat. § 25-21,185.08 (reissue 2008). See, also, Gourley v.
Nebraska Methodist Health Sys., 265 Neb. 918, 663 N.W.2d 43 (2003)
(Gerrard, J., concurring).
TOLLIVEr v. VISITING NUrSE ASSN. 	541
Cite as 278 Neb. 532

expressed in dollars and cents.19 In sum, pain and suffering are
neither a pecuniary loss nor an economic loss. And remember,
the estate’s claims are for Frances’ pain and suffering.
We recognize that some courts have permitted plaintiffs to
recover noneconomic damages under a theory of intentional
fraud.20 but we do not believe permitting pain and suffering
damages for a misrepresentation theory is appropriate in this
case for two reasons.
[11] First, “other theories of action have been sufficient
to deal with non-pecuniary damage,” and resort to theory of
deceit is usually unnecessary.21 For example, here, all of the
damages the estate seeks under its misrepresentation claims
were alleged under its negligence claim. Second, a party may
not have double recovery for a single injury or be made more
than whole by compensation which exceeds the actual damages
sustained.22 The estate did not specifically allege pain and suf-
fering damages for its misrepresentation claims. If it had, those
damages would have duplicated the pain and suffering damages
it claimed under its negligence cause of action.
but the estate complains that the court’s instruction lim-
ited damages for Frances’ pain and suffering to that which
occurred in the last 5 days of her life. It is true that the court’s
jury instructions on the estate’s negligence claim limited the
defendants’ negligence liability to Mumm’s conduct from June
27 until July 1, 2004, the day Frances died. In the negligence
instruction, the court did not specifically instruct the jury
that the estate claimed Hospice House’s conduct had caused
Frances pain and suffering for the entire time that she was
a resident. but instruction No. 11 informed the jury that it
could consider Frances’ physical pain and mental suffering
“during her time at Hospice House.” Thus, the jury arguably
19 See, § 25-21,185.08; Gourley, supra note 18 (Gerrard, J., concurring).
Compare, Poppe v. Siefker, 274 Neb. 1, 735 N.W.2d 784 (2007); Nelson v.
Dolan, 230 Neb. 848, 434 N.W.2d 25 (1989).
20 See Annot., 11 A.L.r.5th 88 (1993).
21 W. Page keeton et al., Prosser and keeton on the Law of Torts § 105 at
726 (5th ed. 1984).
22 Genetti v. Caterpillar, Inc., 261 Neb. 98, 621 N.W.2d 529 (2001).
542 	278 NEbrASkA rEPOrTS

considered Frances’ pain and suffering for the entire time that
she stayed at Hospice House. To the extent that the negligence
instruction failed to specifically state that the estate claimed
Hospice House had been negligent even before these final 5
days, the estate failed to object and seek a clearer instruction.
It now seeks to piggyback Frances’ pain and suffering dam-
ages for her entire stay onto its misrepresentation claims. but,
as noted, the estate alleged these damages as part of its negli-
gence claim.
In its negligence claim, the estate alleged Frances had suf-
fered pain during the final 22 days of her life because of “the
inappropriate and insufficient care she received.” It further
alleged that Hospice House had breached a duty to have trained
staff for the care of terminally ill persons. Yet the court submit-
ted its jury instructions to the parties for review and gave them
an opportunity to object. And despite alleging that Hospice
House’s negligence had caused Frances pain and suffering
during her entire stay, the estate did not object that it claimed
liability for pain and suffering before the period from June 27
to July 1, 2004.
[12,13] 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.23 An issue not presented
to or passed on by the trial court is not appropriate for con-
sideration on appeal.24 Here, the estate’s failure to object and
request a clearer instruction on its negligence claim does not
present a compelling reason for this court to recognize pain
and suffering under a misrepresentation theory. While different
facts could present a compelling reason to permit noneconomic
damages, they are not present here. We decline to recognize
noneconomic damages for a misrepresentation claim.
exclusion of duBe’s causation oPinion regarding
frances’ Pain Was not reversiBle error
Dube was a pharmacist with clinical experience. The record
shows that he had been a consultant to the University of
23 Houston v. Metrovision, Inc., 267 Neb. 730, 677 N.W.2d 139 (2004).
24 Id.
TOLLIVEr v. VISITING NUrSE ASSN. 	543
Cite as 278 Neb. 532

Nebraska Medical Center’s hospice team and director of phar-
macy at the medical center. The court permitted Dube to
testify that the nurses did not give Frances adequate amounts
of medication. He also testified that they failed to consult
Frances’ physician about her condition before they changed his
medication orders in the last 5 days of her life. but the court
sustained the defendants’ objections to Dube’s opinion that the
nurses’ failure to administer adequate medication to Frances
had caused her to suffer increased pain. The defendants had
objected that Dube lacked expertise and factual knowledge.
The estate argues Dube was qualified to give his opinion
that Hospice House’s withholding of medication had caused
Frances to suffer increased pain. The defendants concede that
Dube had expertise in determining “which medications are
effective for specific medical conditions.”25 but they contend
that the estate failed to establish foundation for Dube’s opinion
that withholding medication had caused Frances increased pain
and suffering. They first argue that the foundation for Dube’s
opinion was insufficient because Dube had not personally
observed Frances. In support of their argument, the defendants
rely on two of Dube’s statements during direct examination:
(1) No one could predict the effect of pain medications on a
patient and (2) their effectiveness must be assessed by observ-
ing the patient.
Yet, the defendants concede that the court allowed another
expert for the estate, June Eilers, Ph.D., to give her opinion
without having observed Frances. She opined that withholding
the medications had contributed to Frances’ increased pain. but
the defendants argue that Eilers had a Ph.D. in nursing, exper-
tise in hospice care and pain management, and experience at
hospice patients’ bedsides. And so it argues that in contrast to
Eilers, Dube did not have the experience and expertise to give
his causation opinion. We disagree.
The defendants’ argument lacks consistency. They con-
cede that Eilers, a qualified expert, without having personally
observed Frances, could give a causation opinion regarding
Frances’ increased pain. but they contend that in Dube’s case,
25 brief for appellees at 30.
544 	278 NEbrASkA rEPOrTS

he could not do so because he had not personally observed
Frances’ response to the medications. Dube’s testimony that
patients must be observed to know whether pain medications
are effectively working did not preclude him from giving
his opinion. Ample evidence in the record shows that nurses
who did observe Frances reported that she was experiencing
increased pain in the period after the staff had withheld her
pain medications. Dube could rely on these records. And so the
issue is whether Dube was qualified to give his opinion that the
staff’s withholding of pain medications had substantially con-
tributed to the increased pain nurses observed in Frances.
First, we note that although Dube’s testimony showed he
had training in pharmacology, the estate did not present him
as a pharmacology expert; this expertise differs from having
expertise in pharmacy. Pharmacology is the study of the ori-
gin, nature, chemistry, uses, and effects of drugs.26 Pharmacy
is the study of the preparation, dispensing, and proper use of
drugs.27 but Eilers, whose opinion the court admitted, was also
not presented as having expertise in pharmacology. Instead,
both experts based their opinions on their extensive clinical
experience in observing the effects of pain medications on
hospice patients.
Dube admitted that it was highly unusual for a pharmacist to
be considered an expert in pain management. but he testified
that he had developed his expertise by seeing patients every
day while working at the University of Nebraska Medical
Center. He further stated that physicians at the medical center
had asked for and relied upon his personal observations of
patients and recognized him as an authority on pain manage-
ment. He had written about pain management and had been
involved in the development of hospice care programs. He also
taught others how to provide effective pain management. We
conclude that the court erred in excluding Dube’s causation
testimony while admitting Eiler’s opinion based on a simi-
lar foundation.
26 See Dorland’s Illustrated Medical Dictionary (28th ed. 1994).
27 See id.
TOLLIVEr v. VISITING NUrSE ASSN. 	545
Cite as 278 Neb. 532

but Hospice House argues that even if Dube’s testimony was
admissible, the error was not prejudicial because the testimony
was cumulative. On this point, we agree.
[14,15] To constitute reversible error in a civil case, a trial
court’s admission or exclusion of evidence must unfairly preju-
dice a substantial right of the litigant complaining about the
ruling.28 When substantially similar evidence is admitted with-
out objection, an improper exclusion of evidence is ordinarily
not prejudicial.29
When Dube testified, Eilers and Gamble, two nurses with
extensive experience and expertise in hospice care, had already
testified. They testified that Mumm’s instruction to withhold
pain medications had breached the standard of care and caused
Frances increased pain and suffering. Eilers held a doctorate in
nursing, and Gamble held a master’s degree. Gamble had per-
sonally observed Frances. As noted, Dube’s expertise in pain
management was also based on his clinical experience, which
overlapped the expertise of Gamble and Eilers. On the issue of
causation, his specific expertise in pharmacy did not add a new
perspective to the body of evidence. Thus, we conclude that the
court’s exclusion of Dube’s causation opinion did not prejudice
the estate.30
CONCLUSION
We conclude that the district court did not err in failing to
submit the estate’s misrepresentation claims to the jury. The
estate could not have sought any damages under a theory of
misrepresentation additional to those it was entitled to seek
under its theory of negligence. We further conclude that the
court’s exclusion of an expert’s causation opinion did not
prejudice the estate because it was cumulative to other experts’
causation opinions.
affirMed.
M iller-lerMan, J., participating on briefs.
28 See Leavitt v. Magid, 257 Neb. 440, 598 N.W.2d 722 (1999).
29 See id.
30 See id.
546 	278 NEbrASkA rEPOrTS