Cramer v. Union Pacific RR. Co.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
Chaylea Cramer, appellee and cross-appellant, v.
Union Pacific Railroad Company, a Delaware
corporation, appellant and cross-appellee.
___ N.W.3d ___
Filed April 23, 2026. 	No. S-24-960.
1. Judgments: Pleadings: Appeal and Error. A motion to alter or amend
a judgment is addressed to the discretion of the trial court, whose deci-
sion will be upheld in the absence of an abuse of that discretion.
2. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves inde-
pendently of the lower court’s decision.
3. Jury Instructions: Proof: Appeal and Error. In an appeal based upon
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
4. Motions for New Trial: Appeal and Error. A motion for new trial is
addressed to the discretion of the trial court, whose decision will be
upheld in the absence of an abuse of that discretion.
5. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
6. Trial: Expert Witnesses: Appeal and Error. An appellate court
reviews de novo whether the trial court applied the correct legal stan-
dards for admitting an expert’s testimony, and an appellate court reviews
for abuse of discretion how the trial court applied the appropriate stan-
dards in deciding whether to admit or exclude an expert’s testimony.
7. Federal Acts: Railroads: Claims: Courts. A state court may use
procedural rules applicable to civil actions in the state court unless
otherwise directed by the Federal Employers’ Liability Act, but sub-
stantive issues concerning a claim under the act are determined by the
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:40 AM CDT

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
provisions of the act and interpretive decisions of the federal courts
construing the act.
8. Jury Instructions: Appeal and Error. All the jury instructions must
be read 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 the evidence, there is no prejudicial error necessitat-
ing reversal.
9. ____: ____. Where jury instructions are claimed deficient on appeal
and such issue was not raised at trial, an appellate court reviews for
plain error.
10. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record but not complained of at trial,
which prejudicially affects a substantial right of a litigant and is of such
a nature that to leave it uncorrected would cause a miscarriage of justice
or result in damage to the integrity, reputation, and fairness of the judi-
cial process.
11. Jury Instructions: Presumptions. It is presumed a jury followed the
instructions given in arriving at its verdict, and unless it affirmatively
appears to the contrary, it cannot be said that such instructions were
disregarded.
12. Federal Acts: Jury Instructions. An apportionment instruction is
appropriate in a Federal Employers’ Liability Act case where there
is evidence of a preexisting condition but the degree to which that con-
dition may have been aggravated could not be determined.
13. ____: ____. In the absence of proof of aggravation by a preexisting con-
dition, an instruction on apportionment in a Federal Employers’ Liability
Act would be inappropriate.
14. Trial: Expert Witnesses. When confronted with expert testimony, the
trial court serves as a gatekeeper to ensure the opinions presented to
the finder of fact are reliable and helpful.
15. ____: ____. In evaluating expert opinion testimony 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), where such testimony’s factual basis, data,
principles, methods, or their application are called sufficiently into ques-
tion, the trial judge must determine whether the testimony has a reliable
basis in the knowledge and experience of the relevant discipline.
16. ____: ____. The trial court must make a preliminary assessment whether
the reasoning or methodology underlying an expert’s testimony is valid
and whether that reasoning or methodology properly can be applied to
the facts in issue.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
Appeal from the District Court for Douglas County: Leigh
Ann Retelsdorf, Judge. Affirmed.
Cathy S. Trent-Vilim, of Lamson Dugan & Murray, L.L.P.,
and Torry N. Garland and Betsy Seeba-Walters, of Union
Pacific Railroad Company, for appellant.
Corey L. Stull and Nolan J. Niehus, of Atwood Law, P.C.,
L.L.O., for appellee.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Freudenberg, J.
I. INTRODUCTION
This appeal arises from a jury verdict in a Federal Employers’
Liability Act (FELA) 1 case. An employee of a railroad sued
her employer after she injured her ankle descending the stairs
at the railroad’s dispatch center. The case proceeded to trial,
where the jury returned a verdict finding the railroad was 5
percent at fault and the employee was 95 percent at fault and
awarding $287,600 in damages to the employee. The railroad
moved to amend the judgment, arguing that the court should,
under 45 U.S.C. § 55 of FELA, set off from the judgment the
short-term disability payments received by the employee and
that the court should reduce the jury’s damage award by 95
percent, allegedly to reflect the jury’s finding of fault. The
employee moved for a judgment notwithstanding the verdict
and for a new trial, asserting that the court gave erroneous
jury instructions on the issues of apportionment due to pre-
existing injury and comparative fault. The employee also
asserted that the court erroneously excluded a portion of
her expert’s opinion on lost future worklife capacity on the
grounds that her expert’s opinion lacked adequate foundation.
1 See 45 U.S.C. § 51 et seq. (2018).

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
The trial court denied both parties’ motions. The railroad
appealed, and the employee cross-appealed. We moved the
appeal to our docket.
II. BACKGROUND
On August 14, 2017, Chaylea Cramer was employed as a dis-
patcher for Union Pacific Railroad Company (UP), and worked
at UP’s dispatch center in Omaha, Nebraska. As Cramer was
descending a flight of stairs leading toward the restroom, she
stepped on the transition between the terrazzo surface of the
stairs and the carpeted surface, causing her to “roll[]” her left
ankle. Cramer “walked it off” following the incident and con-
tinued with her shift. Cramer cared for her ankle at home that
night and wore a brace to work the next day. Cramer met with
a superior the next day who encouraged her not to report the
incident. Cramer eventually went to see Dr. Scott McMullen, a
foot and ankle orthopedist who had treated her in 2001 when
she was a teenager for a prior injury to her left ankle. After
Cramer’s appointment with McMullen, she filled out a report
of personal injury for UP.
After a few months of conservative treatment, including a
walking boot, ankle brace, and cortisone shots, Cramer had
surgery on her injured left ankle in January 2018. Cramer
eventually underwent several surgeries on both her left and
right ankles in the years following the incident.
Cramer filed suit against UP under FELA in July 2020.
Cramer alleged that UP failed to furnish and provide her with
a reasonably safe place to work, failed to maintain its walk-
ways in a reasonably safe manner, and failed to design and
maintain its stairwell properly. Cramer alleged that the inci-
dent caused her to sustain severe and disabling injuries that
required extensive medical care and would require continuing
medical care.
UP answered and admitted that Cramer was employed by UP
and was working in furtherance of its business on August 14,
2017, but otherwise generally denied the allegations set forth

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
in Cramer’s complaint. UP asserted the following affirmative
defenses: Cramer’s contributory negligence; Cramer’s failure
to mitigate; Cramer’s injuries were caused, in whole or in part,
by preexisting conditions; and UP could be entitled to a setoff
due to benefits that were paid to Cramer.
As relevant to this appeal, the litigation revolved around the
fault of the respective parties for Cramer’s injuries, whether
Cramer had a preexisting injury that caused or contributed to
her injuries, whether Cramer’s injuries would impact her abil-
ity to work in the future, and what damages, if any, Cramer
was entitled to.
1. Trial
The case was tried before a jury over six days in July 2024.
(a) Cramer’s High Arch Foot Condition
Prior to trial, Cramer moved to exclude any argument,
statement, testimony, evidence, implication, or suggestion that
her damages should be reduced because of any preexisting
condition. Cramer argued there was no evidence to a reason-
able degree of medical certainty that any preexisting con-
dition caused her left ankle injury. The court overruled this
motion in limine.
At trial, McMullen testified as an expert for Cramer, and
Dr. Peter Cimino, an orthopedic surgeon, testified as an expert
for UP on the issue of Cramer’s “pes cavus” foot condition.
McMullen testified that “pes cavovarus,” a form of pes cavus,
is characterized by high arches and inwardly turned heels.
There was conflicting testimony and evidence concerning
whether Cramer’s pes cavus condition made her more suscep-
tible or contributed to the injury she suffered on August 14,
2017, and the subsequent surgeries on both ankles.
Exhibit 108, the office notes from Cramer’s initial visit to
McMullen in September 2017, was admitted into evidence.
In the narrative discussing McMullen’s physical examination
of Cramer, McMullen noted that Cramer “has a cavovarus

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
posture.” Congenital pes cavus was listed as an “[a]ctive
[p]roblem[].” Cimino testified that congenital pes cavus is
something that a person is born with that develops as the
person grows. In the notes from Cramer’s initial visit with
McMullen, he stated an x ray showed that Cramer, “on the
lateral view, does have a pes cavus posture.”
McMullen testified that he had no memory or recollec-
tion of Cramer’s presenting with pes cavus when he first
treated her in 2001 but noted that it was present in both feet
when he saw her again in September 2017 following the
workplace incident. McMullen testified that pes cavus is not
a condition that always requires treatment, but it requires
treatment if it becomes symptomatic. McMullen and Cimino
each testified that they had no information that Cramer’s pes
cavus had given her problems or was symptomatic between
Cramer’s 2001 ankle surgery and the August 14, 2017, inci-
dent. McMullen did testify, however, that Cramer’s pes cavus
existed before she suffered the ankle sprain at work in
August 2017.
McMullen opined that Cramer’s pes cavus did not cause
the ankle injury Cramer suffered in August 2017 and did not
necessitate the followup surgeries he performed on Cramer’s
ankles. On cross-examination, however, McMullen agreed
that pes cavus can cause increased pressure, alter force dis-
tribution, and predispose people to roll their ankles when
doing activities that require balance and stability, including
descending stairs. Cimino similarly testified that having pes
cavus is a “factor in sprained ankles” because the shape of a
foot with pes cavus creates stress on the ligaments, making
them easier to injure. Cimino testified that he was offering
no opinions on the issue of apportionment as it pertained
to Cramer’s pes cavus foot condition but opined that, while
Cramer’s first surgery after the August 2017 incident was
due to the incident, the subsequent surgeries were due to
Cramer’s existing degenerative pes cavus foot condition.
McMullen and Cramer also testified that Cramer’s ankle

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
“buckled” when she fell down the stairs at her in-laws’ house
in November 2017, after the incident at UP, but before her
first postincident surgery.
(b) Cramer’s Comparative Fault
Another major issue at trial was whether Cramer was neg-
ligent and contributed to the incident that caused her to suffer
the left ankle injury. There was no surveillance footage of when
Cramer rolled her ankle, and no one witnessed the incident.
Cramer testified at trial about the nature of her work as a
dispatcher at UP, explaining how important it is to be present
and focused at the workstation. Cramer testified that if a dis-
patcher “wanted to go heat up . . . food or go to the restroom,
you mentally hurried up quick, went there, handled what you
needed to and you got back to your desk.” Cramer further
defined “mental hurry” as not “dilly-dallying” and “walking
with the purpose of going to the restroom or heating up your
food and getting straight back to your desk.” A supervisor at
UP also testified that dispatchers need to be attentive and try
to take the most “direct and expeditious route” to and from
the restroom.
When asked to describe the incident on August 14, 2017,
Cramer explained that she got up to go to the restroom, held
the handrail on the stairs with her right hand, and “walked
down the stairs, normal stride.” Then, when Cramer got to
the landing of the stairs, she stepped down with her left
foot and “it kind of felt squishy, and [her] ankle rolled from
underneath” her. After she rolled her ankle, Cramer walked
it off, inspected the area, used the restroom, and carried on
with the rest of her shift. Cramer testified that she was not
“physically rushing.”
Exhibit 150, which was entered into evidence at trial, is
a clinical consultation record from when Cramer saw UP’s
occupational health nurse on August 15, 2017, the day after
the incident. According to that record, “[Cramer] stated she
was in a hurry on 8/14/17 toward the end of her shift around

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
11-1130p [sic], stepped off of the last step of stairs wrong and
tweaked her right [sic] ankle.” At trial, Cramer acknowledged
seeing a nurse the day after the incident and agreed that she
used the term “hurry.”
Exhibit 101, also entered into evidence, is UP’s “Report of
Personal Injury or Occupational Illness” form that was filled
out and signed by Cramer about a month after she rolled her
ankle descending the stairs. In the report, Cramer described
the cause of the accident as her being “[i]n a hurry and I
didn’t notice the uneven footing.” At trial, Cramer explained
that by saying “in a hurry,” she meant a “mental hurry.”
Another supervisor at UP who signed the report as a witness
testified at trial that “[b]eing in a hurry is not necessarily
wrong.” The supervisor acknowledged that she did not offer
any coaching to Cramer or reprimand Cramer for reporting
that she was in a hurry.
In February 2018, Cramer gave a recorded interview with
a UP risk management representative regarding the incident.
During this interview, Cramer explained, “I was going to the
restroom, I was going down the stairs to use the restroom so
probably in a little bit of a hurry.” Cramer clarified, “I wasn’t
in anymore of a hurry than I would have been on a normal day
going to the restroom.”
Dr. Terry Stentz, an expert in the fields of occupational
safety health, ergonomics, and human factors, testified for
Cramer and opined that Cramer’s use of the handrail when
descending the stairway would have made it “awfully hard to
run down a set of stairs.” Based on Stentz’ examination of the
stairs and review of the record, including Cramer’s testimony
about the incident, he opined that Cramer did not descend the
stairs in an unsafe way and was not rushing.
(c) McMullen’s Testimony Regarding
Future Lost Worklife Expectancy
Before trial, UP moved to exclude or limit McMullen’s
opinions related to Cramer’s diminished worklife expectancy.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
UP asserted that McMullen’s opinion related to Cramer’s
lost worklife expectancy would not be sufficient to meet the
standard for the admissibility of expert medical opinions
because it lacked foundation and reliability. In support of
this argument, UP attached to its motion McMullen’s opinion
report, which stated, “I believe that it is more likely than not”
that Cramer’s worklife expectancy would be diminished by
approximately 15 years. Cramer responded to UP’s argument
by pointing out that McMullen’s report stated that his opin-
ion was based on a reasonable degree of medical certainty.
Further, Cramer asserted that McMullen’s opinion was based
on adequate foundation and reliable methodology and was
supported by an affidavit from McMullen. In his affidavit,
McMullen stated that he formed an opinion on Cramer’s
future worklife expectancy based on his training, education,
and experience. McMullen opined that Cramer’s ability to
work would be “diminished by approximately 15 years.”
After a hearing, the court took the matter under advisement
but deferred a ruling until more evidence and testimony
was presented.
At trial, in addition to testifying regarding Cramer’s inju-
ries and treatment over the years, McMullen sought to tes-
tify 	regarding 	Cramer’s 	lost 	future 	worklife 	expectancy.
McMullen was asked about if and how he determines whether
a person is physically capable of going back to work, includ-
ing how the progression of an injury might affect the person’s
job. This line of questioning drew an objection from UP, and
the court sustained a foundation objection. McMullen was
then asked if part of his practice involves making determina-
tions of restrictions on patients when they return to work, as
well as evaluating how they will progress over time, and he
answered, “Yes.”
Cramer’s attorney next asked, “In this case, have you
formed any opinions about whether . . . Cramer would, to a
reasonable degree of medical certainty, will have a shortening
of her worklife expectancy due to the injury she has sustained

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
on August 14, 2017?” This question again drew an objection
from UP, and the court sustained a foundation objection. In
response, Cramer’s attorney asked if McMullen had reviewed
all of Cramer’s medical treatment records and functional
capacity evaluation, to which McMullen replied that he had.
Cramer’s attorney then inquired about Cramer’s ankle injury,
the potential for the ankle’s deterioration, and Cramer’s job
duties. Based on this questioning, Cramer’s attorney asked,
“[D]o you feel that you have the ability to give an opinion, to
a reasonable degree of medical certainty, as to what the future
will hold for . . . Cramer in terms of her work?” McMullen
answered, “Yes.” UP again objected on foundation grounds
when McMullen was asked to provide his opinion on Cramer’s
future work. The court sustained UP’s objection.
Cramer’s attorney attempted to lay more foundation by
asking McMullen how he came to the opinion that Cramer’s
worklife would be shortened. McMullen explained that he used
his experience, education, and treatment of Cramer to arrive at
his opinions. Cramer’s attorney again asked what McMullen’s
opinion was on Cramer’s future worklife expectancy, which
drew another foundation objection.
The court then held a sidebar to discuss the foundation
for McMullen’s opinion. The court expressed concerns that
McMullen’s opinion on Cramer’s lost worklife expectancy
lacked a factual basis and there was no formula he was rely-
ing on. The court explained that general opinions about the
injury’s getting worse were permissible but giving opinions
about the specific number of work years Cramer would lose
due to the injury required more foundation. The court spe-
cifically stated that more foundation was needed in terms
of methodology.
Following the sidebar, Cramer’s attorney asked McMullen
more general questions about his observing patients over time
who had suffered similar injuries as Cramer and underwent
similar procedures, as well as the progression of the problems
they encountered, including at work. Counsel then turned to

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
questions about Cramer’s and McMullen’s understanding of
her work, including how her ankle injury would impact her.
When Cramer’s attorney asked about whether McMullen used
a specific formula, the court requested another sidebar.
During the second sidebar, the court again expressed con-
cern with McMullen’s offering a specific opinion about how
many work years Cramer would lose out on due to her injury,
without 	any 	formula 	or 	specific 	methodology. 	Following
the second sidebar, Cramer’s attorney asked, generally, if
McMullen had an opinion about whether Cramer’s worklife
in the future will be affected by the injuries she sustained.
McMullen answered that Cramer’s “ability to continue at her
current level of work will be shortened. It would not last until
the typical retirement age, 65.”
After the jury was excused for the day, Cramer’s attorney
made an offer of proof on McMullen’s opinion regarding
Cramer’s lost worklife expectancy. During the offer of proof,
Cramer’s attorney asked McMullen if there is “any formula
or anything that medical science has developed that allows
[him]” to give opinions regarding the future worklife of his
patients. McMullen responded, “Not that I know of or that I
have utilized.” McMullen then testified as part of the offer of
proof that, based on his training, experience, and treatment
of Cramer, Cramer’s worklife would be shortened by approx-
imately 15 years. At the conclusion of the offer of proof, the
court reaffirmed its ruling on foundation as to McMullen’s
methodology in forming his opinion.
(d) Damages
Throughout trial, there was testimony regarding Cramer’s
claimed damages. Stan Smith, who has a Ph.D. in econom-
ics, testified regarding Cramer’s past lost wages from time
spent recovering from her surgeries. Smith testified, based on
his review of Cramer’s wages and the time she missed, that
Cramer’s past lost wages were $41,691. In closing arguments,

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
Cramer’s attorney requested that the jury award her $41,600 in
past lost wages.
Smith also testified about Cramer’s potential future lost
wages due to her injuries. Smith opined that the actual amount
of future lost wages would vary depending on promotions and
how many years Cramer would lose out on due to the inju-
ries. Smith created a table, which was used as a demonstra-
tive exhibit at trial, to show how Cramer’s lost wages would
accumulate over time. In closing arguments, Cramer’s attorney
requested $1,137,951 in damages for future lost wages and lost
pension benefits.
Finally, Smith testified regarding the value of Cramer’s lost
household services due to her injuries. Smith opined, based
on an average value of services up to the life expectancy of
82.5 years, Cramer would be damaged by $1,345,128 in lost
household services. Cramer’s attorney asked for that amount in
closing arguments.
In closing arguments, Cramer’s attorney discussed Cramer’s
pain and suffering from the injuries she suffered and requested
$3,119,812 in pain and suffering damages. In sum, Cramer’s
attorney asked for damages in the total amount of $5,644,491.
(e) Presubmission Motions
Before the case was submitted to the jury, both Cramer and
UP moved for directed verdicts. At the jury instruction con-
ference, Cramer moved for a directed verdict on the issues of
contributory negligence and apportionment due to a preexisting
condition. The court overruled Cramer’s motion.
UP first moved for a directed verdict on the issues of neg-
ligence and future wage loss following Cramer’s presentation
of evidence. The court overruled the motion on both issues. At
the conclusion of the jury instruction conference, UP renewed
its motion for directed verdict on negligence and future lost
wages. The court overruled UP’s renewed motion.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
2. Jury Instructions
(a) Instruction No. 2
Jury instruction No. 2 generally laid out Cramer’s claim
and UP’s affirmative defenses and the applicable burdens of
proof. UP’s affirmative defenses of Cramer’s comparative
fault and preexisting conditions contributing to the incident
and her injuries were included in instruction No. 2. At the
jury instruction conference, Cramer objected to the inclusion
of the paragraph regarding preexisting conditions contributing
to the injury. The court overruled Cramer’s objection, stating
that the issue should be submitted to the jury.
(b) Instruction No. 9
Jury instruction No. 9 included block quotes from 45 U.S.C.
§§ 51 and 53 of FELA, along with five facts that the parties
had stipulated as true. The block quote from 45 U.S.C. § 53 of
FELA included in instruction No. 9 stated:
“In all actions brought against any common carrier by
railroad to recover damages for personal injuries to an
employee, the fact that the employee may have been
guilty of contributory negligence shall not bar a recov-
ery, but the damages shall be diminished by the jury in
proportion to the amount of negligence attributable to
such employee.”
At the jury instruction conference, Cramer objected to the
inclusion of the contributory negligence portion of instruction
No. 9. The court overruled Cramer’s objection, explaining that
the instruction stated the law and was an affirmative defense
for the jury to consider. UP offered a requested instruction
that also quoted 45 U.S.C. § 53 of FELA but included a para-
graph that stated “then the total award of damages to Cramer
will be reduced by the court.” The record does not indicate the
court’s consideration of UP’s proposed instruction, and UP did
not object to instruction No. 9 as given.

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321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
(c) Instruction No. 14
Jury instruction No. 14 concerned Cramer’s pes cavus foot
condition and instructed the following:
There is evidence that Cramer had bilateral pes cavus
foot deformities before the August 14, 2017 incident.
[UP] is liable only for any damages that you find to be
caused by the August 14, 2017, incident.
This is true even if the person’s preexisting condition
made her more susceptible to injury than a healthy person,
and even if a healthy person may not have suffered any
substantial injury cause [sic] by aggravation.
If 	you 	cannot 	separate 	damages 	caused 	by 	the
preexisting condition from those caused by the accident,
then [UP] is liable for all of those damages.
[UP] must prove this defense by the greater weight of
the evidence.
(Emphasis omitted.) Cramer objected to instruction No. 14,
arguing that it was not appropriate because there was no
evidence to support it. Cramer also proposed an instruction
that stated that “an asymptomatic condition prior to the acci-
dent does not warrant apportionment.” The court overruled
Cramer’s objections and gave the instruction as quoted above.
(d) Verdict Form No. 3
The jury was given three verdict forms, with instructions to
complete only one. The jury was instructed to complete ver-
dict form No. 1 if it found Cramer failed to prove her claim
by the greater weight of the evidence. Verdict form No. 2
was to be completed if Cramer had proved her claim by the
greater weight of the evidence and UP had not proved any
of its defenses set forth. Verdict form No. 3 was to be com-
pleted if both Cramer and UP had proved their claim and any
defense, respectively, by the greater weight of the evidence.
Additionally, the jury was instructed that, if it were to com-
plete verdict form No. 3, that Cramer’s damages “if any, must
be reduced proportionally.”

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CRAMER v. UNION PACIFIC RR. CO.
Cite as 321 Neb. 246
Verdict form No. 3 instructed the jury to first consider
Cramer’s damages in six categories: past wage loss, present
value of lost future earnings, pain and suffering, present value
of lost household services, and future value of loss of house-
hold services. The jury was then to apportion the negligence of
Cramer and UP to total 100 percent.
At the jury instruction conference, Cramer objected to ver-
dict form No. 3 in its entirety. UP objected to the initial form
of verdict form No. 3, which did not include itemized damage
categories. UP also requested a line for the jury to provide a
percentage for preexisting injury and to have the court reduce
the verdict by that percentage. Cramer objected to this request,
arguing that it was contrary to instruction No. 14. The court
responded that the instructions already told the jury to reduce
the damages.
(e) Jury’s Question
During deliberations, the jury submitted a question to the
court, asking: “Does the amount for % of negligence correlate
to plaintiff’s damages?” After a brief discussion with counsel
for both parties, the court generally referred the jury back to
the instructions already provided.
3. Jury Verdict
On July 15, 2024, the jury returned a verdict finding
that both Cramer and UP had met their burdens of proof.
Accordingly, the jury completed verdict form No. 3. The jury
found that Cramer was damaged in the following categories
for the following amounts: past wages loss to date of trial
($41,600), present value of lost future earnings ($0), pain and
suffering to date of trial ($135,000), future pain and suffering
($90,000), present value of lost household services ($21,000),
and future loss of household services ($0). The damages
awarded by the jury amounted to $287,600. The jury found
that Cramer was 95 percent negligent and that UP was 5 per-
cent negligent.

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The court received and accepted the jury’s verdict.
4. Postverdict Motions
Each party made postverdict motions. Cramer moved for
a new trial and for judgment notwithstanding the verdict.
Cramer asserted that a new trial was warranted because the
court erred by instructing the jury on the issue of apportion-
ment in instruction No. 14. Cramer further argued that the
jury’s assessment that she was 95 percent at fault was not
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jury improperly reduced her damages, asserting that it was
the court’s role to do so. Finally, Cramer argued a new trial
was warranted because of the allegedly erroneous exclusion
of McMullen’s testimony regarding Cramer’s lost worklife
expectancy. Cramer asserted that a judgment notwithstand-
ing the verdict was proper because the jury’s finding that
her preexisting condition supported apportionment was not
reasonable and the jury’s finding that she was contributorily
negligent was not reasonable.
The court denied both of Cramer’s motions following a
hearing. In denying Cramer’s motion for a new trial, the
court found that the evidence was sufficient to support an
apportionment instruction, the question of Cramer’s negligence
was a jury question, the jury properly reduced the damages
award, and the exclusion of McMullen’s opinion on lost work-
life expectancy was warranted. In denying Cramer’s motion
for judgment notwithstanding the verdict, the court similarly
found that the evidence of apportionment and the question of
Cramer’s negligence were properly left to the jury.
UP moved to amend the judgment. UP argued that the court
should reduce the jury’s $287,600 damage award to reflect
Cramer’s 95-percent fault as found by the jury. UP also argued,
under 45 U.S.C. § 55 of FELA, that it was entitled to a setoff
in the amount of $33,048.60, which represented the amount
Cramer received from UP in short-term disability payments
from UP’s self-funded disability plan.
In relevant part, 45 U.S.C. § 55 of FELA provides that “in
any action brought against [a] common carrier under . . . any
of the provisions of this chapter, such common carrier may
set off therein any sum it has contributed or paid to any insur-
ance, relief benefit, or indemnity that may have been paid to
the injured employee.” In relation to UP’s motion to amend
the judgment, both parties introduced exhibits regarding UP’s
short-term disability plan. The purpose of the short-term dis-
ability plan, as described in the plan itself, is to provide con-
tinued income for a UP employee if illness or injury prevents

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the employee from working. The short-term disability plan
states, “The Plan shall automatically have a lien against Other
Income Replacement Benefits.” “Other Income Replacement
Benefits” are defined in UP’s “Employee Flexible Benefits
Guide” as including “[w]orkers [sic] compensation or a sim-
ilar law which provides periodic benefits.” Further, under
the language of the short-term disability plan, an employee
is required to sign a “‘Reimbursement Agreement,’” which
acknowledges 	“the 	[short-term 	and 	long-term 	disabil-
ity] Plan’s right to funds obtained from any recovery [the
employee] receive[s].”
After a hearing on UP’s motion, the court denied the
motion to amend the judgment. The court relied on the plain
language of 45 U.S.C. § 53, which provides that “the dam-
ages shall be diminished by the jury in proportion to the
amount of negligence attributable to such employee,” to deny
UP’s request to amend the jury’s damage award. The court
found that the short-term disability payments made by UP to
Cramer were considered “fringe benefits” and were thus not
entitled to setoff.
Both UP and Cramer filed notices of appeal on the same
day. We moved the case to our docket.
III. ASSIGNMENTS OF ERROR
On appeal, UP asserts that the district court erred (1) in
denying its motion to amend the judgment to reduce the
amount of the verdict in accordance with Cramer’s percentage
of fault and (2) in denying its motion to amend the judgment
to set off the verdict by the amount of short-term disability
payments that were paid to Cramer.
On cross-appeal, Cramer assigns, consolidated and restated,
that the district court erred (1) in submitting UP’s affirmative
defense of apportionment of damages to the jury and denying
Cramer’s motion for a new trial as a result of erroneously sub-
mitting the apportionment defense to the jury, (2) in submit-
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and in denying Cramer’s motions for judgment notwithstand-
ing the verdict and for a new trial as a result of erroneously
submitting the comparative fault defense to the jury, and (3) in
finding McMullen lacked the foundation to testify to Cramer’s
lost worklife expectancy.
IV. STANDARD OF REVIEW
[1] A motion to alter or amend a judgment is addressed to
the discretion of the trial court, whose decision will be upheld
in the absence of an abuse of that discretion. 2
[2,3] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision. 3 In an appeal based upon a claim of an
erroneous jury instruction, the appellant has the burden to show
that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant. 4
[4,5] A motion for new trial is addressed to the discretion
of the trial court, whose decision will be upheld in the absence
of an abuse of that discretion. 5 An abuse of discretion occurs
when a trial court’s decision is based upon reasons that are
untenable or unreasonable or if its action is clearly against jus-
tice or conscience, reason, and evidence. 6
[6] We review de novo whether the trial court applied the
correct legal standards for admitting an expert’s testimony, and
we review for abuse of discretion how the trial court applied
the appropriate standards in deciding whether to admit or
exclude an expert’s testimony. 7
2 Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).
3 State v. Tvrdy, 315 Neb. 756, 1 N.W.3d 479 (2024).
4 Id.
5 132 Ventures v. Active Spine Physical Therapy, 318 Neb. 64, 13 N.W.3d
441 (2024).
6 Id.
7 Carson v. Steinke, 314 Neb. 140, 989 N.W.2d 401 (2023).

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V. ANALYSIS
UP asserts that the district court erred when it denied UP’s
motion to amend the judgment to (1) reduce Cramer’s damage
award by 95 percent to reflect what UP asserts is the jury’s
finding of Cramer’s fault and (2) set off $33,048.60 from the
judgment pursuant to payments that were made to Cramer
as part of UP’s short-term disability plan. Cramer, for her
part, asserts the district court erred in instructing the jury on
issues of apportionment and comparative fault and in exclud-
ing McMullen’s opinion on the specific number of work years
Cramer would lose due to her injuries.
[7] We address each of these arguments in turn. As a
threshold matter, we observe that a state court may use proce-
dural rules applicable to civil actions in the state court unless
otherwise directed by FELA, but substantive issues concern-
ing a claim under FELA are determined by the provisions of
the act and interpretive decisions of the federal courts con-
struing FELA. 8
1. Jury Diminution of Damage Award
UP’s argument that the district court erred in denying its
motion to amend the judgment to reduce the jury’s dam-
age award is essentially twofold: (1) the jury did not reduce
Cramer’s damages in proportion with her fault because it did
not understand the instructions and (2) the district court should
have reduced the jury’s award of damages.
Consistent with its lack of objection to any of the instruc-
tions or to the special verdict form (other than the addition
of itemized damages), UP does not argue that the instructions
incorrectly stated the law, were misleading, or inadequately
covered the issues supported by the pleadings and the evi-
dence. Nevertheless, UP points to verdict form No. 3 as being
8 See Ballard v. Union Pacific RR. Co., 279 Neb. 638, 781 N.W.2d 47
(2010).

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amenable to misinterpretation, by setting forth a section for
the jury to award Cramer’s damages in distinct categories
before having the jury assign percentages of fault. Then, as
evidence that the jury was confused, UP highlights the jury’s
question submitted during deliberations and points out that
the award of $41,600 in past lost wages was the same amount
Cramer sought in closing arguments. UP contends that to
avoid any possible confusion, the court, sua sponte, should
have simply instructed the jury that it would reduce Cramer’s
damages after the jury determined fault. We disagree.
[8-10] It is well established that all the jury instructions
must be read 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 the evidence, there is no
prejudicial error necessitating reversal. 9 Where jury instruc-
tions are claimed deficient on appeal and such issue was not
raised at trial, an appellate court reviews for plain error. 10
Plain error exists where there is an error, plainly evident from
the record but not complained of at trial, which prejudicially
affects a substantial right of a litigant and is of such a nature
that to leave it uncorrected would cause a miscarriage of jus-
tice or result in damage to the integrity, reputation, and fair-
ness of the judicial process. 11
[11] It is presumed a jury followed the instructions given
in arriving at its verdict, and unless it affirmatively appears to
the contrary, it cannot be said that such instructions were dis-
regarded. 12 Absent such showing, appellate courts “‘properly
avoid such [speculative] explorations into the jury’s sovereign
9 State v. Tvrdy, supra note 3.
10 J.R.M.B. v. Alegent Creighton Health, 319 Neb. 287, 21 N.W.3d 678
(2025).
11 Id.
12 In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).

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space.’” 13 As such, “‘a verdict will not be upset on the basis of
speculation’ about possible jury confusion.” 14
We do not find plain error in the instructions given. Read
together, the jury instructions properly stated the law under
FELA and properly instructed the jury on how to determine
fault and apportion damages.
The jury instructions first instructed the jury to reduce
Cramer’s damages in proportion to her fault. Instruction No.
9 included language quoted from 45 U.S.C. § 53 of FELA,
which provides, in relevant part: “[T]he fact that the employee
may have been guilty of contributory negligence shall not bar
a recovery, but the damages shall be diminished by the jury
in proportion to the amount of negligence attributable to such
employee.” Next, instruction No. 2 provided that if both Cramer
and UP had proved their claim and defenses, respectively,
“then [Cramer’s] damages, if any, must be reduced proportion-
ally and [the jury] will fill out Verdict Form No. 3.” The rele-
vant instructions correctly stated the law, were not misleading,
and adequately covered the issues supported by the pleadings
and the evidence.
And UP has failed to affirmatively show that the jury failed
to follow these instructions when reaching its verdict. UP
offers three arguments in an attempt to show that the jury did
not understand the instructions and did not follow the instruc-
tions, each of which we find unpersuasive.
First, UP states it is “reasonable to assume” that the jury
determined 	Cramer’s 	damages 	before 	apportioning 	fault,
because that is how the order of the section regarding damages
appeared on verdict form No. 3. 15 Again, UP did not object to
13 Helmer v. Goodyear Tire & Rubber Co., 828 F.3d 1195, 1200 (10th Cir.
2016) (quoting Yeager v. United States, 557 U.S. 110, 129 S. Ct. 2360, 174
L. Ed. 2d 78 (2009)).
14 Allen v. Minnstar, Inc., 97 F.3d 1365, 1373 (10th Cir. 1996) (quoting
Howard D. Jury, Inc. v. R & G Sloane Mfg. Co., 666 F.2d 1348 (10th Cir.
1981)).
15 Brief for appellant at 18.

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the order of the section regarding damages and fault on the
verdict form, and the verdict form was not plain error. We will
assume the jury read verdict form No. 3 in conjunction with
the instructions to the jury to reduce Cramer’s damages in pro-
portion with her fault.
Second, UP highlights that the jury’s damage award included
$41,600 in damages for lost past wages, which was the same
amount asked for by Cramer in closing arguments. However,
as Cramer points out, $41,600 was just a part of the $287,600
total damage award; indeed, the $287,600 total damage award
represents only approximately 5 percent of Cramer’s requested
damages of $5,644,491.
Third, UP points to the jury’s question during deliberations
as evidence that the jury did not understand the instructions.
UP agreed, at the time, with the court’s decision to direct
the jury generally back to the instructions, but now implies
that decision was inadequate. Regardless, such inquiries by
jurors into the instructions are insufficient in themselves to
justify intruding into the jury’s sovereign space and upset
its verdict. 16
Even considering all three arguments together, UP has
failed to affirmatively rebut the presumption that the jury
followed the instructions when it reached its verdict and
awarded damages.
UP also argues the court should have instructed the jury
that it would reduce Cramer’s damages based on its finding
of fault. In other words, UP seems to suggest that the jury
should not have been tasked with reducing Cramer’s damages
in proportion with her fault in the first place. While UP offered
a proposed instruction with such language, UP ultimately did
not object to instruction No. 9 as given, which instructed the
jury to diminish Cramer’s damages in proportion to her fault.
Thus, UP must show plain error. It has not.
16 See Allen v. Minnstar, Inc., supra note 14.

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UP relies upon the common practice in Nebraska negli-
gence cases where the jury determines fault and the court cal-
culates the reduction in damages in proportion with the fault
finding. 17 UP also relies on the unpublished opinion of the
U.S. District Court for the Eastern District of Pennsylvania in
Bauder v. Philadelphia, Bethlehem, & New England R. Co. 18
for the proposition that it would have been proper for the
court to reduce Cramer’s damage award. In Bauder, the trial
court explicitly instructed that the jury was to make findings
of fault, and the trial court would then reduce the damage
award pursuant to that finding. 19 On appeal, the Bauder court
rejected the argument that it was error under 45 U.S.C. § 53
of FELA to instruct the jury that the judge would reduce
the damages. 20
UP’s reliance on this law is misplaced. As UP acknowl-
edges, FELA is governed by federal law and not by Nebraska
negligence law. 21 Regardless, the issue in this appeal is not
whether the court could have elected to conduct the relevant
reduction of damages itself, but if it was error to have the jury
reduce the damages instead.
UP does not actually suggest it is improper under FELA
for a jury to make this decision. Instead, UP’s argument on
this point appears to be another approach at undermining
the jury’s decision that it disagrees with. UP conceded to
instructing the jury on reducing damages in proportion with
its findings of fault. Once the jury rendered its verdict under
the special verdict form, it was too late to give that issue to
the judge instead.
17 See NJI2d Civ. 5.05.
18 Bauder v. Philadelphia, Bethlehem & New England R. Co., No. CIV.
96-7188, 1998 WL 633651 (E.D. Penn. Aug. 28, 1998) (unpublished
memorandum opinion).
19 See id.
20 See id.
21 See Ballard v. Union Pacific RR. Co., supra note 8.

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The district court did not err in denying UP’s motion to
amend the judgment. At their core, UP’s arguments offer
mere speculation into the jury’s deliberative process in order
to nullify the calculation that UP had agreed the jury, not
the judge, should determine. Because UP cannot show that
the jury failed to follow the instructions by failing to reduce
Cramer’s damages in proportion with her fault, the district
court did not abuse its discretion in denying UP’s motion to
amend the judgment to reduce Cramer’s damage award.
2. Short-Term Disability Payments
We also find no merit to UP’s argument that the jury verdict
should be altered to set off $33,048.60, which represents the
amount of short-term disability payments that were made to
Cramer while she was recovering from surgery. We agree with
Cramer that the district court properly found UP’s short-term
disability plan language did not express an intent to indemnify
UP against FELA liability; therefore, such payments were not
subject to setoff.
According to 45 U.S.C. § 55 of FELA, an employer is
allowed to set off from a judgment any sum it has contributed
that has been paid to the injured employee “on account of the
injury,” as long as the employer is not seeking to totally avoid
liability. 22 That section of FELA provides in full:
Any contract, rule, regulation, or device whatsoever,
the purpose or intent of which shall be to enable any
common carrier to exempt itself from any liability created
by this chapter, shall to that extent be void: Provided,
[t]hat in any action brought against any such common
carrier under or by virtue of any of the provisions of this
chapter, such common carrier may set off therein any sum
it has contributed or paid to any insurance, relief benefit,
or indemnity that may have been paid to the injured
22 Clark v. Burlington Northern, Inc., 726 F.2d 448 (8th Cir. 1984).

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employee or the person entitled thereto on account of the
injury or death for which said action was brought. 23
“The purpose of the FELA setoff provision is to prevent
the imposition upon an employer of double liability, as the
employer need not pay twice for the same damages.” 24
Courts have read the scope of the setoff provision in 45
U.S.C. § 55 as limited by its requirement that the payments
subject to setoff be made “‘on account of the injury.’” 25 The
cases thus “draw a distinction between payments emanating
from a fringe benefit such as a retirement fund or a general
hospital and medical insurance plan, and payments [that] the
employer has undertaken voluntarily to indemnify itself against
possible liabilities” under FELA. 26
The important consideration is the character of the bene-
fits received by the employee, rather than whether the source
of the funds is actually independent of the employer. 27 If the
employee receives benefits from the employer with the pur-
pose of indemnifying the employer against FELA liability for
job-related injuries, the payments are likely subject to setoff. 28
If, however, the benefits are not related to FELA indemnifica-
tion, they are likely exempt from setoff. 29
Accordingly, a key factor in determining if disability ben-
efits should be set off from a damage award is whether a
railroad expresses a clear intent to avoid double liability
under FELA based on the language of the plan at issue. 30 The
23 45 U.S.C. § 55 (emphasis omitted).
24 Andrews v. Norfolk Southern Railroad Corp., 2017 IL App. (1st) 153007,
¶16, 77 N.E.3d 1028, 1033-34, 413 Ill. Dec. 221, 226-27 (2017).
25 Clark v. Burlington Northern, Inc., supra note 22, 726 F.2d at 450.
26 Id. (emphasis supplied).
27 Clark v. Burlington Northern, Inc., supra note 22.
28 See id.
29 See id.
30 See id.

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purpose and nature of insurance benefits are controlling when
determining whether setoff is proper and, “for that determi-
nation[,] courts look to any collective bargaining agreement
between the parties and the text of the insurance or disability
plan itself.” 31
For example, in Clark v. Burlington Northern, Inc., 32 a
FELA case, the U.S. Court of Appeals for the Eighth Circuit
affirmed setoff of an employee’s damage award by the amount
the employee received in long-term and short-term disability
payments, because the plain language of the railroad’s disabil-
ity plans explicitly stated that the employee’s benefits would
be “‘decreased’” or “‘reduced’” by any amount or benefit
paid to the employee under “‘[workers’] [c]ompensation or
Occupational Disease Act or [FELA].’” 33 The court found that
this language showed the railroad’s clear intent to avoid double
liability under FELA. 34
In Fogg v. National R.R. Passenger Corp., 35 the District of
Columbia Court of Appeals found that long-term disability
payments were subject to setoff under FELA where the text of
the disability plan provided a “‘Reduction of Monthly Income
Benefit,’” which was defined to include “‘[a]ny periodic cash
payments provided on account of your disability: . . . under or
on account of any [workers’] compensation or similar law.’” 36
While the plan did not explicitly reference FELA, the court
read the reference to “‘similar law’” in the railroad’s plan
to include FELA. 37 Relying, in part, on secondary authority,
31 Fogg v. National R.R. Passenger Corp., 585 A.2d 786, 792 (D.C. App.
1991).
32 Clark v. Burlington Northern, Inc., supra note 22.
33 Id. at 451 n.3.
34 See Clark v. Burlington Northern, Inc., supra note 22.
35 Fogg v. National R.R. Passenger Corp., supra note 31.
36 Id. at 792 (emphasis omitted).
37 See id. at 793.

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the court elaborated that FELA, “for practical purposes,”
serves as the workers’ compensation remedy for covered rail-
road employees. 38
On the other hand, in Brady v. National R.R. Passenger
Corp., 39 the U.S. District Court for the District of Connecticut,
also looking to the text of a railroad’s disability plan, found
that the language “‘[workers’] compensation or similar law’”
did not show the railroad’s intent to protect itself from dou-
ble liability under FELA. The court in Brady explained that
workers’ compensation and FELA are similar in their reme-
dial purpose but different in most other material aspects. 40
Further, the court found it difficult to believe the railroad
would use such ambiguous language to express its intent to
avoid double liability under FELA. 41 Where there was no
other language indicating an intent that any possible FELA
award be set off by payments under the disability plan, the
court therefore found that the railroad was not entitled to
a setoff. 42
Following 	the 	decisions 	in 	Fogg 	and 	Brady, 	the 	U.S.
Supreme Court clarified, albeit in a different context, that
FELA is not similar to a workers’ compensation scheme.
The Court explained, “‘The basis of [FELA] liability is [the
employer’s] negligence, not the fact that injuries occur.’” 43
38 Id. (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts
§ 80 (5th ed. 1984)).
39 Brady v. National R.R. Passenger Corp., 714 F. Supp. 601, 603 (D. Conn.
1989) (emphasis omitted).
40 See id.
41 See id.
42 See id.
43 Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 543, 114 S. Ct.
2396, 129 L. Ed. 2d 427 (1994) (quoting Ellis v. Union Pacific R. Co., 329
U.S. 649, 67 S. Ct. 598, 91 L. Ed. 572 (1947)). See, also, Fogg v. National
R.R. Passenger Corp., supra note 31 (Rogers, C.J., concurring in part and
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UP’s disability plan provides setoff for “any Other Income
Replacement 	Benefits 	directly 	payable 	to 	[an 	employee]
from any other State, Federal, Railroad Retirement Board, or
other income benefit program.” “Other Income Replacement
Benefits” are then defined to include income received from
disability under “[w]orkers [sic] compensation or a similar
law which provides periodic benefits.” (Emphasis supplied.)
Unlike the plan in Clark and similarly to the plan in Brady,
UP’s disability plan makes no mention of FELA. Further,
UP’s plan adds the phrase “which provides periodic benefits”
to the language of the plans in Fogg and Brady. Regardless of
whether FELA could otherwise be considered a “similar law”
to workers’ compensation, the phrase “provides periodic ben-
efits,” read in its ordinary grammatical context, modifies “a
similar law.” And FELA does not provide periodic benefits.
FELA is a remedy in tort that provides for recovery of lump-
sum damages. 44 UP also points to the language in its plan pro-
viding that an employee seeking long-term or short-term dis-
ability payments must sign a “‘Reimbursement Agreement’”
acknowledging the plan’s “right to funds obtained from any
recovery [the employee] receive[s].” This language, appli-
cable to any injured employee, whether through a work-
place injury or otherwise, does not show an intent to avoid
double liability under FELA. UP also did not provide a
“‘Reimbursement Agreement’” that was signed by Cramer
related to her receipt of short-term disability payments. As
such, the plain language of UP’s disability plan with Cramer
did not provide for setoff against FELA liability. Nothing in
the language of UP’s disability plan expressed the clear intent
to indemnify UP against FELA liability.
The disability payments fell under a general medical insur-
ance plan not related to FELA indemnification, and the plain
language of the plan does not contemplate setoff otherwise
44 See 45 U.S.C. § 51.

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indemnifying UP against FELA liability for job-related inju-
ries. As a result, the district court did not abuse its discretion
in denying UP’s motion to amend the judgment to set off
$33,048.60 from Cramer’s past lost wages.
3. Apportionment
We turn next to Cramer’s cross-appeal. Cramer argues the
district court erred in submitting UP’s affirmative defense of
apportionment to the jury because (1) UP did not offer an
expert opinion on the issue of apportionment and (2) her pre-
existing condition was not symptomatic.
Initially, we note that Cramer and UP dispute whether
Cramer’s pes cavus condition was symptomatic at the time
of the incident. Cramer emphasizes that she did not need
treatment for her high arches before the incident and that she
did not suffer any pain before the incident. UP points out that
Cramer suffered from chronic instability in her left ankle due
to her pes cavus and the 2001 surgery.
[12,13] We have held that an apportionment instruction is
appropriate in a FELA case where there is evidence of a pre-
existing condition but the degree to which that condition may
have been aggravated could not be determined. 45 We have
also held that in the absence of proof of aggravation by a pre-
existing condition, an instruction on apportionment in a FELA
case would be inappropriate. 46
Similarly, a federal court has held that “when a defendant’s
negligence aggravates a plaintiff’s pre-existing health condi-
tion, the defendant is liable only for the additional increment
caused by the negligence and not for the pain and impairment
that the plaintiff would have suffered even if the accident had
never occurred.” 47 If a defendant cannot show a reasonable
45 See Gustafson v. Burlington Northern RR. Co., 252 Neb. 226, 561 N.W.2d
212 (1997).
46 See id.
47 Stevens v. Bangor and Aroostook R.R. Co., 97 F.3d 594, 601 (1st Cir.
1996).

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basis for determining which damages were caused by the pre-
existing condition and which were caused by the accident at
issue, the defendant is liable for the whole. 48
We find no merit to Cramer’s assertion that UP needed to
present expert testimony of apportionment in order to sub-
mit the question of whether it had proved some of Cramer’s
damages were caused by her preexisting condition. Instead,
we agree with other courts that have held there need not be
“expert testimony precisely apportioning the injury on a per-
centage basis between preexisting conditions and prior acci-
dents.” 49 Evidence regarding the extent to which an injury is
attributable to a preexisting condition “need only be sufficient
to permit a rough practical apportionment.” 50 Accordingly,
“When there is evidence that defendant’s negligence aggra-
vated a preexisting condition but expert testimony does not
precisely apportion the injury, apportionment is an issue
for the jury.” 51 While “apportionment may be difficult, like
comparative negligence it is a question for which juries are
well suited.” 52
We also disagree with Cramer’s apparent argument that
a preexisting condition must be symptomatic at the time
of an accident for an apportionment instruction to be prop-
erly given. Cramer asserts that Maurer v. United States, 53 a
Public Vessels Act case, stands for the proposition that “[a]
defendant can only apportion damages from an injury if the
defendant can show the plaintiff was incapacitated or dis-
abled prior to the accident.” 54 But that proposition is one of
48 See id.
49 Sauer v. Burlington Northern R. Co., 106 F.3d 1490, 1494 (10th Cir.
1996).
50 Id.
51 Id.
52 Id.
53 Maurer v. United States, 668 F.2d 98 (2d Cir. 1981).
54 Brief for appellee on cross-appeal at 40.

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two exceptions to the general rule that a defendant takes the
plaintiff as he finds him. 55 The second exception to the gen-
eral rule identified in Maurer is, “when a plaintiff has a pre-
existing condition that would inevitably worsen, a defendant
causing subsequent injury is entitled to have the plaintiff’s
damages discounted to reflect the proportion of damages that
would have been suffered even in the absence of the subse-
quent injury.” 56
Further, federal FELA cases do not require a showing that
the plaintiff is symptomatic to support an apportionment jury
instruction. In McLaughlin v. BNSF Ry. Co., 57 the Colorado
Court of Appeals explained that an apportionment instruction
may be appropriate where there is evidence that a plaintiff
reinjured an injury that had fully resolved prior to the inci-
dent at issue. Likewise, in Sauer v. Burlington Northern R.
Co., 58 the U.S. Court of Appeals for the 10th Circuit found
there was sufficient evidence to support an apportionment
instruction where there was evidence that a plaintiff had
degenerative changes in his back, which made him more sus-
ceptible to injury, despite the fact that the plaintiff “had few
symptoms and no significant disability from his preexisting
back condition prior to the accidents.” 59 The court also found
an apportionment instruction was supported by testimony that
the plaintiff’s degenerative condition would have possibly
worsened over time without the workplace accidents. 60
Here, there was sufficient evidence to support the apportion-
ment instruction, because, even if Cramer’s pes cavus was not
symptomatic in the timeframe preceding the injury, there was
55 See Maurer v. United States, supra note 53.
56 Id. at 100.
57 McLaughlin v. BNSF Ry. Co., 300 P.3d 925 (Colo. App. 2012).
58 Sauer v. Burlington Northern R. Co., supra note 49.
59 Id. at 1495.
60 See Sauer v. Burlington Northern R. Co., supra note 49.

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evidence that her pes cavus foot condition is a degenerative
condition that creates stress on the ankle ligaments and makes
it more likely she would roll her ankle. McMullen and Cimino
each explained that pes cavus is characterized by high arches
and inwardly turned heels. McMullen testified that Cramer’s
pes cavus predated the August 2017 ankle injury. There was
also evidence, as similarly discussed in McLaughlin, that
Cramer reinjured the same ankle that had been surgically
repaired in 2001 and that McMullen’s first postincident surgery
was a revision of the same surgery performed on the same
ankle in 2001. Finally, there was testimony that Cramer fell
down the stairs at her in-laws’ house in late 2017, after the
workplace incident but before the first postincident surgery.
While the evidence was conflicting as to what role, if any,
Cramer’s pes cavus played in her August 2017 ankle injury and
several subsequent surgeries, the issue of apportionment was
properly left to the jury.
The district court did not err in instructing the jury on appor-
tionment and did not abuse its discretion in denying Cramer’s
motion for a new trial based on the apportionment instruction.
4. Comparative Fault
The district court also did not err in submitting UP’s
affirmative defense of comparative fault to the jury, because
UP submitted sufficient evidence to support that theory. FELA
is a pure comparative negligence scheme. 61 When the issue of
comparative or contributory negligence is raised, a defendant
has the burden of proving comparative or contributory neg-
ligence and is entitled to a jury instruction on this issue if
there is any evidence to support that theory. 62 Cramer does
not take issue with the correctness of the language contained
61 See Fashauer v. New Jersey Transit Rail Operations, 57 F.3d 1269 (3d Cir.
1995). See, also, Consolidated Rail Corporation v. Gottshall, supra note
43.
62 See Meyers v. Union Pacific R. Co., 738 F.2d 328 (8th Cir. 1984).

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in instruction No. 9 on contributory negligence, which is from
45 U.S.C. § 53 of FELA.
In the context of FELA, contributory negligence is a care-
less act or omission on a plaintiff’s part tending to add new
dangers to conditions that an employer negligently created or
permitted to exist. 63 “Since [the] issues of the plaintiff’s con-
duct and of damages usually are interwoven in FELA actions,
the issue of damages is rarely submitted to a jury without
also allowing the jury to consider the question of contribu-
tory negligence.” 64
When there is evidence of a plaintiff’s lack of due care,
regardless whether it is compelling or contested, the plaintiff’s
negligence is a question for the jury to consider. 65 For exam-
ple, in Lillie v. U.S., 66 a Federal Tort Claims Act case, the U.S.
Court of Appeals for the 10th Circuit found that evidence of a
plaintiff’s hurrying down stairs showed a lack of ordinary care
and supported a comparative negligence defense for the finder
of fact to consider.
Here, Cramer points to her testimony that she was not rush-
ing and the fact that she was not reprimanded for any wrong-
doing associated with the accident. However, in exhibits 101,
150, and 162, Cramer herself explained she was in a “hurry”
when she descended the stairs and rolled her ankle. Cramer
attempted at trial to distinguish a “mental hurry” from a phys-
ical hurry. But the jury could have reasonably inferred a lack
of due care either from evidence that Cramer was in a physical
hurry or from evidence that she was distracted by a “mental
hurry” when she descended the stairs.
63 Taylor v. Burlington Northern R. Co., 787 F.2d 1309 (9th Cir. 1986).
64 Norfolk Southern Ry. Co. v. Thomas, 258 Va. 516, 521, 522 S.E.2d 620,
623 (1999). See, also, Gustafson v. Burlington Northern RR. Co., supra
note 45.
65 See Gustafson v. Burlington Northern RR. Co., supra note 45.
66 Lillie v. U.S., 40 F.3d 1105 (10th Cir. 1994).

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Because both parties presented evidence on the issue of
Cramer’s alleged fault, a jury instruction on the issue of con-
tributory negligence was warranted and the question of whether
Cramer contributed to the accident was properly presented to
the jury.
5. McMullen’s Lost Worklife
Expectancy Opinion
Finally, we find that the district court did not err in sus-
taining UP’s Daubert v. Merrell Dow Pharmaceuticals, Inc. 67/
Schafersman v. Agland Coop 68 objection to Cramer’s attempts
to adduce McMullen’s expert opinion that the accident short-
ened Cramer’s worklife expectancy by 15 years. At trial,
McMullen was allowed to testify generally that Cramer’s
worklife will be shortened due to her injuries. We review
de novo whether the district court applied the correct legal
standards for admitting an expert’s testimony, and we review
for an abuse of discretion how the district court applied the
appropriate standards in deciding whether to admit or exclude
an expert’s testimony. 69
[14-16] When confronted with expert testimony, the trial
court serves as a gatekeeper to ensure the opinions presented
to the finder of fact are reliable and helpful. 70 In evaluating
expert opinion testimony under Daubert/Schafersman, where
such testimony’s factual basis, data, principles, methods, or
their application are called sufficiently into question, the trial
judge must determine whether the testimony has a reliable basis
in the knowledge and experience of the relevant discipline. 71
67 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993).
68 Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
69 Carson v. Steinke, supra note 7.
70 Schafersman v. Agland Coop, supra note 68.
71 Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 597 (2019).

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The trial court must make a preliminary assessment whether
the reasoning or methodology underlying an expert’s testimony
is valid and whether that reasoning or methodology properly
can be applied to the facts in issue. 72
In 	Kempf 	Contracting 	Design 	v. 	Holland-Tucker, 73 the
Indiana Court of Appeals found it was error for the trial court
to allow expert testimony on lost worklife expectancy without
establishing that the expert’s opinion was based on a suffi-
ciently reliable methodology. The court there found issue with
the expert’s lack of specific standards and sufficient supporting
authority to support the expert’s “bald assertion” that his meth-
odology was generally accepted. 74
Similarly here, the district court found that McMullen’s
opinion on how many specific work years Cramer would
lose due to her injuries was not based on a reliable method-
ology. When the court questioned how McMullen came up
with exactly 15 years, rather than 13 years or another similar
number, McMullen could only generally explain that his opin-
ion was based on his training, experience, and treatment of
Cramer. McMullen was unable to explain his methodology, and
Cramer failed to offer any factors, formula, or other supporting
information to show how McMullen reached an opinion that
Cramer’s worklife expectancy would be diminished by exactly
15 years due to her injuries.
Based on our review of the record, we find that the district
court did not abuse its discretion in excluding, on the basis that
the opinion lacked sufficient foundation and reliable methodol-
ogy, McMullen’s opinion on a specific number of years of lost
worklife expectancy.
72 See id. See, also, Schafersman v. Agland Coop, supra note 68.
73 Kempf Contracting Design v. Holland-Tucker, 892 N.E.2d 672 (Ind. App.
2008).
74 Id. at 678.

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VI. CONCLUSION
For the foregoing reasons, UP’s and Cramer’s assignments
of error have no merit. Accordingly, the judgment of the dis-
trict court is affirmed.
Affirmed.
Cassel, J., concurring.
I write separately to encourage the trial judges and the bar to
employ a belt-and-suspenders approach in crafting jury instruc-
tions, verdict forms, and procedures where both a plaintiff and
a defendant have met their respective burdens of proof.
My district court experience taught me the following: Judges
often do not trust juries to do math correctly, and a typical jury
wants to see the exact effect of its verdict. In other words,
juries do not trust judges either. Although the comparative
fault regime in a Federal Employers’ Liability Act 1 case differs
from Nebraska’s comparative fault statutes, 2 this aspect applies
equally to both.
An extensive discussion appears in our jury instruction
manual. 3 I do not intend to duplicate that recitation. But I
respectfully disagree with the discussion there in one respect:
There are three, not just two (judge does math or jury does it),
possible ways of complying with the “statutory requirement.” 4
The third way is to combine both alternatives identified
by the Nebraska Supreme Court Committee on Practice and
Procedure. Before deliberations begin, tell the jury via detailed
instructions how it is to perform the task, and in what order,
and provide the jury with a verdict form that precisely fol-
lows the instructions’ path and has appropriate blank spaces
at each step. In that way, the verdict form would set forth the
jury’s underlying findings and the result of its mathematical
1 See 45 U.S.C. § 51 et seq. (2018).
2 See Neb. Rev. Stat. §§ 25-21,185.07 to 25-21,185.12 (Reissue 2016).
3 See NJI2d Civ. 5.05, special note, comment & authorities.
4 See id., comment at 573.

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computations. Then, at the time the verdict is returned and
before accepting and entering judgment upon the verdict and
discharging the jury, the trial judge should check the math,
verify apparent compliance of the verdict with the instruc-
tions, and resolve—by further inquiry, instructions, or deliber-
ations, or some combination—any uncertainties.
This approach would require careful crafting to the specific
situation in each case. But the time and effort required pales in
comparison to the costs and delays associated with an appeal
or a new trial.
This, I suggest, conforms to both the statute 5 and our prece-
dent. 6 I commend it to the committee’s attention.
5 See § 25-21,185.09.
6 See, City of Wahoo v. NIFCO Mech. Systems, 306 Neb. 203, 944 N.W.2d
757 (2020); Sinsel v. Olsen, 279 Neb. 38, 777 N.W.2d 54 (2009); Russell
v. Stricker, 262 Neb. 853, 635 N.W.2d 734 (2001); Wheeler v. Bagley, 254
Neb. 232, 575 N.W.2d 616 (1998).