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Francisca Rodriguez, an individual, appella

Surgical Associates P.C. and Greg Fitzk

an individual, appellee

___ N.W.2d ___

Filed January 5, 2018. No. S-16-698.

1. Jury Instructions. Whether a jury instruction is correct is a question 

of law.

2. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court.

3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by such rules; judicial 

discretion is involved only when the rules make discretion a factor in 

determining admissibility.

4. Trial: Evidence: Appeal and Error. A trial court has the discretion to 

determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse 

of that discretion.

5. Judges: Words and Phrases. A judicial abuse of discretion exists if the 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition.

6. Jury Instructions: Pleadings: Evidence. A litigant is entitled to have 

the jury instructed upon only those theories of the case which are presented by the pleadings and which are supported by competent evidence.

7. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

statement of the law, (2) the tendered instruction was warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s failure to 

give the requested instruction.

8. Negligence: Liability: Contractors and Subcontractors. Generally, 

one who employs an independent contractor is not vicariously liable for 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/26/2018 01:12 AM CST
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physical harm caused to another by the acts or omissions of the contractor or its servants. An employer’s liability for the breach of a nondelegable duty, however, is an exception to this general rule.

9. Negligence: Liability: Contractors and Subcontractors: Words and 

Phrases. A nondelegable duty means that an employer of an independent contractor, by assigning work consequent to a duty, is not relieved 

from liability arising from the delegated duties negligently performed.

10. Negligence: Liability. As a result of a nondelegable duty, the responsibility or ultimate liability for proper performance of a duty cannot be 

delegated, although actual performance of the task required by a nondelegable duty may be done by another.

11. Negligence: Jury Instructions. A nondelegable duty instruction is not 

appropriate when there are no judicial admissions or evidence that a 

defendant had assigned the performance of his duties to a subordinate 

party at the time that the alleged breach occurred.

12. Jury Instructions: Damages: Proximate Cause: Proof. A preexisting 

condition jury instruction does not permit a jury to assess damages in 

any amount unless the plaintiff first proves proximate cause.

13. Juries: Verdicts: Presumptions. When the jury returns a general verdict for one party, an appellate court presumes that the jury found for 

the successful party on all issues raised by that party and presented to 

the jury.

14. Appeal and Error. The purpose of an appellant’s reply brief is to 

respond to the arguments the appellee has advanced against the errors 

assigned in the appellant’s initial brief.

15. Records: Appeal and Error. It is incumbent upon the appellant to 

present a record supporting the errors assigned; absent such a record, 

an appellate court will affirm the lower court’s decision regarding 

those errors.

16. Rules of Evidence: Expert Witnesses: Hearsay. Under Neb. Evid. R. 

703, Neb. Rev. Stat. § 27-703 (Reissue 2016), an expert may rely on 

hearsay facts or data reasonably relied upon by experts in that field.

17. Expert Witnesses: Physicians and Surgeons: Records. A medical 

expert may express opinion testimony in medical matters based, in part, 

on reports of others which are not in evidence but upon which the expert 

customarily relies in the practice of his or her profession.

18. Expert Witnesses: Records: Hearsay: Testimony. The mere fact that 

an expert relied on hearsay does not transform it from inadmissible into 

admissible evidence. However, inadmissible evidence, upon which an 

expert relies, may be admitted on direct examination if it was offered 

not to prove the truth of the matter asserted but simply to demonstrate 

the basis for the expert’s testimony.
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Appeal from the District Court for Lancaster County: Lor

A. Maret, Judge. Affirme

Steven H. Howard, of Dowd, Howard & Corrigan, L.L.C., 

for appellant.

James A. Snowden and Elizabeth Ryan Cano, of Wolfe, 

Snowden, Hurd, Luers & Ahl, L.L.P., for appellees.

Heavican, C.J., Wright, Miller-Lerman, Cassel,

Kelch, and Funke, 

Funke, J

This appeal arises from an order entered on a general 

jury verdict for Greg Fitzke, M.D., and Surgical Associates 

P.C. (collectively appellees) in a medical negligence claim. 

Francisca Rodriguez claimed that Fitzke was negligent in failing to timely diagnose and treat her, which resulted in her suffering additional injuries.

Rodriguez claims that the court committed reversible error 

in denying certain jury instructions and allowing witnesses to 

provide expert opinions that were not disclosed before trial. 

Because we do not find merit in Rodriguez’ claims, we affirm.

I. BACKGROUND

1. Factual Background of Rodri

Hospitalization and Trea

On April 16, 2012, Rodriguez was referred to a hospital in 

Lincoln, Nebraska, due to stomach pains, fever, and nausea.

Fitzke is a general surgeon and a partner in Surgical 

Associates who has surgical privileges at the hospital. Upon 

examining Rodriguez, Fitzke determined that she needed an 

immediate cholecystectomy, a surgical procedure to remove 

her gallbladder. Rodriguez’ gallbladder was gangrenous and 

had attached to other organs around it.

While her gallbladder was being removed, it ruptured and 

released stones and purulent material, or pus, into Rodriguez’ 

abdominal cavity—an unavoidable risk of the surgery. Fitzke 
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cleaned the abdomen and inserted a drain in Rodriguez’ 

hepatic fossa to allow any accumulation of tissue fluids from 

the procedure to drain out of the body and be monitored. 

During or as a result of the surgery, however, Rodriguez’ 

intestine was also perforated, a fact not known by Fitzke at 

the time.

Later that evening, Rodriguez appeared to be recovering 

well with only minor pain from the surgery. On April 17, 2012, 

Rodriguez began experiencing significant pain and her status 

changed from outpatient to inpatient. Fitzke and Raymond 

Taddeucci, M.D., another partner with Surgical Associates, 

testified that her condition was consistent with the extent 

of her acute cholecystitis and the known complications of 

the surgery.

Rodriguez’ vital signs were relatively stable on April 17, 

2012. But, around 11 p.m., Rodriguez’ blood pressure became 

hypotensive, nearly to the point of being classified as shock, 

and her heart rate increased into tachycardia. At both 3 and 4 

a.m., on April 18, Rodriguez’ vitals again exhibited significant 

hypotension, meeting the criteria for shock, and tachycardia. Additionally, she had an elevated respiratory rate, tachypnea; elevated white blood cell count; and decreased oxygen 

saturation level and urinary output. She was also reported to 

be confused.

The surgeon on call for Surgical Associates ordered 

Rodriguez transferred to the intensive care unit and engaged 

internal medicine services for further treatment and evaluation. 

She also received a broad-spectrum antibiotic, in addition to 

the antibiotic that she was given shortly after surgery; intravenous fluids; and oxygen.

A physician’s assistant stated in a 4 a.m. progress note 

that Rodriguez had diffuse tenderness in her abdomen. He 

also stated the following as potential causes for many of 

Rodriguez’ symptoms: dehydration, blood pressure medications, and early mild sepsis—potentially resulting from the 

gallbladder material that spilled into her abdomen during surgery or a developing pneumonia. At about 7 a.m., an internal 
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medicine doctor ordered a CT scan with unspecified contrast 

of Rodriguez’ abdomen because of her pain and hypotension. 

X rays performed that morning showed that there was free air 

in Rodriguez’ abdomen, which was expected after the procedure, and new developing lobe infiltrates in the left lower lung, 

which suggested the development of pneumonia.

At about 8 a.m., Fitzke examined Rodriguez and reviewed 

her laboratory tests. He noted that her abdomen was soft, 

tender, and distended but that there were no signs of peritonitis. He decided not to perform exploratory surgery, and he 

canceled the order for a CT scan. He testified that administering intravenous fluids or oral contrast for the CT scan would 

have been risky because of Rodriguez’ decreasing kidney 

function and developing pneumonia and that the CT scan 

was unlikely to produce useful information, based on both 

his physical examination of her and the proximity to surgery. 

Instead, he decided to continue treating Rodriguez with additional intravenous fluids and antibiotics. He stated that he discussed canceling the CT scan with the internist on duty later 

that morning.

Throughout the day, test results indicated that Rodriguez’ 

condition was declining into severe sepsis. She continued 

to experience hypotension, tachycardia, confusion, both an 

elevated respiratory rate and white blood cell count, and 

both decreased oxygen saturation levels and urinary output. 

Rodriguez was also diagnosed with renal failure and exhibited 

results indicating that she might be suffering organ failure in 

her heart, brain, and liver.

Between 2 and 3 a.m., on April 19, 2012, the nurses called 

an internal medicine doctor because Rodriguez was in shock. 

The doctor placed a central venous catheter into a large vein 

going down toward Rodriguez’ heart. In addition, he gave 

Rodriguez two vasopressor drugs designed to elevate the blood 

pressure to a safe level.

The doctor also ordered a “HIDA” scan, which tests whether 

the liver and biliary system are functioning normally, because 

bile-tinged fluids were beginning to exit from the drain in 
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Rodriguez’ hepatic fossa. The results of the HIDA scan showed 

that fluid was passing from the liver to the intestine, ruling out 

cholangitis. However, it was otherwise equivocal regarding a 

leak from the biliary system, which would be treated by a nonsurgical procedure, and an intestinal leak, which is a surgical 

emergency requiring intervention.

When Rodriguez was returned to the intensive care unit 

at about 12:20 p.m., she again went into shock. Rodriguez 

was placed on heavy sedation, to allow an endotracheal tube 

to be inserted directly into the lungs, and placed on a ventilator to help oxygenate her tissues. She was administered 

80 percent oxygen, which meant she was going rapidly into 

overt respiratory failure and clear septic shock. Beginning on 

the evening of April 18 and throughout April 19, 2012, the 

nurses also reported several times that Rodriguez’ abdomen 

was distended.

Despite the deterioration in her condition, Rodriguez experienced slight improvement in some of her test results. Many of 

her issues from the previous day, however, persisted. At 12:20 

p.m., Robin Allen, M.D., an internist, stated at the conclusion 

of her progress report: “? Need to go back to OR.”

At about 1:15 p.m., Fitzke examined Rodriguez. He stated 

in his progress report that her abdomen was not rigid or distended. He also indicated that she might have delayed sepsis 

from the gross purulence released during her surgery but 

that there were no signs of ascending cholangitis. Further, he 

wrote that a CT would still be “of low yield” for identifying 

a bile leak. He concluded that he would follow Rodriguez’ 

progress and that the sepsis protocol should continue to 

be followed.

Fitzke testified that his primary consideration at that time 

was that Rodriguez had sepsis, resulting from the ruptured 

gallbladder, and that his secondary concern was a bile duct 

leak. He did not consider an intestinal perforation to be 

existent because she was not exhibiting peritonitis or succus 

entericus in her drain; while Rodriguez was not necessarily 

getting better, factors indicated a positive response to therapy 
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and a potential for improvement. He discussed the factors 

present with Allen, another treating physician, and believed 

that she agreed he did not need to return Rodriguez to the 

operating room.

At 5 p.m. on April 19, 2012, Fitzke transferred care of 

Rodriguez to Taddeucci, because Fitzke had to be out of town 

for a medical meeting the following day. Taddeucci testified 

that he and Fitzke discussed Rodriguez’ condition; Fitzke was 

not sure what was causing Rodriguez’ issues, but they discussed ascending cholangitis, pneumonia, and a bile leak as 

potential causes.

That evening, John Duch, M.D., a nephrologist, noted that 

Rodriguez’ abdomen was soft but distended with diminishing 

bowel sounds. He also wrote: “Septic shock. She is on broadspectrum antibiotics and empiric vasoactive medications, and 

surgery is following.” Additionally, Rodriguez began presenting a fever for the first time since her operation, and her urine 

output decreased again.

By the morning of April 20, 2012, the other improvements from April 19 had also reversed. Taddeucci examined 

Rodriguez at about 12:30 p.m. and stated that she was now 

experiencing peritonitis. Further, the pulmonologist and critical care doctor informed Taddeucci that they had done everything they could but that her condition was not improving. 

Taddeucci determined that a second surgery would be necessary to address her condition, which he performed at around 

2:30 p.m.

The surgery started as an exploratory laparoscopic procedure, intended to discover possible explanations for Rodriguez’ 

decline. During this surgery, however, Taddeucci discovered 

the perforation in Rodriguez’ small intestine. At that point, the 

nature of the surgery changed to an anastomosis procedure, 

which is an operation to remove a section of the intestine. 

Taddeucci also extracted about two quarts of bilious fluid, 

which had leaked from the intestine into Rodriguez’ abdominal cavity. Rodriguez tolerated the procedure well, and there 

were no complications.
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Ultimately, Rodriguez had eight additional operations during the subsequent 11

⁄2 months and remained hospitalized until 

July, with numerous complications. She had her final operation in February 2013, which was a skin graft to heal a large 

open wound on her abdomen that had persisted since her 

release. Rodriguez ultimately recovered with no permanent 

organ injuries.

2. Expert Opin

At trial, Rodriguez called one surgical expert and one critical care physician. Each testified regarding his opinion of the 

care Fitzke provided to Rodriguez.

The surgical expert testified that Fitzke breached the standard of care in three instances: (1) by failing to follow the 

three-step protocol for treating septic shock, (2) by failing to 

create and follow a reasonable surgical differential diagnosis, 

and (3) by canceling the CT scan that had been ordered for 

Rodriguez on April 18, 2012. The critical care physician also 

testified that Fitzke’s canceling the CT scan and failing to 

timely treat the source of Rodriguez’ infections were a breach 

of the standard of care. As a result of these breaches, each 

testified that Rodriguez’ corrective surgery was delayed by 2 

days, occurring on April 20 instead of April 18. The critical 

care physician also provided testimony concerning the injuries 

that resulted from the delay.

Appellees called two expert surgical witnesses. They testified that canceling the CT scan was reasonable based on the 

circumstances. Additionally, they stated that Fitzke had complied with all reasonable standards of care during the postoperation period and that Fitzke made the correct decision by not 

sending Rodriguez to surgery before April 20, 2012, given the 

information available at that time.

3. Procedural Hist

Rodriguez filed her complaint in August 2013, and the 

matter proceeded to a jury trial in April 2016. The following 

allegations of negligence against Fitzke were submitted to the 
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jury: (1) failing to adequately assess Rodriguez following the 

April 16, 2012, surgery; (2) canceling an April 18 CT scan; (3) 

failing to order a CT scan; (4) failing to perform surgery on 

April 18; and (5) failing to perform surgery on April 19.

During deliberations, the jury submitted a question to the 

court regarding Duch’s note on April 19, 2012. The question 

and answer by the court are as follows:

Can we have clarification on Dr. Duch[’s] note, Exhibit 

56, p: 17:

Assessment & Plan:

#4: Septic Shock — “surgery is following”

Does this mean that a surgical operation is expected to 

occur, or that the surgical team will be following up?

Response:

You must base your verdict only on the evidence presented to you during the trial and the instructions of law 

I have given you.

The jury returned a general verdict for appellees. Rodriguez 

filed a motion for new trial, which was overruled. Rodriguez 

then perfected a timely appeal. We moved the case to our 

docket pursuant to our authority to regulate the caseloads of 

this court and the Nebraska Court of Appeals.1

II. ASSIGNMENTS OF ERROR

Rodriguez assigns, restated and reordered, that the court 

erred in (1) failing to give the requested jury instruction 

regarding Fitzke’s liability for the negligence of his surgical 

team; (2) failing to give the requested jury instruction regarding the aggravation of her preexisting condition; (3) allowing appellees’ expert, Taddeucci, to give expert testimony 

on issues not previously disclosed; and (4) permitting Fitzke 

to quote a nonexpert and nontestifying treating physician 

regarding the standard of care for his postoperative treatment 

of Rodriguez.

1 Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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III. STANDARD OF REVIEW

[1,2] Whether a jury instruction is correct is a question of 

law.2 When reviewing questions of law, an appellate court has 

an obligation to resolve the questions independently of the 

conclusion reached by the trial court.3

[3,4] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by such 

rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility.4 A trial court 

has the discretion to determine the relevancy and admissibility 

of evidence, and such determinations will not be disturbed on 

appeal unless they constitute an abuse of that discretion.5

[5] A judicial abuse of discretion exists when the reasons or 

rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in 

matters submitted for disposition.6

IV. ANALYSIS

1. Trial Court Did Not Err in R

Rodriguez’ Requested Jury Instru

[6] Jury instructions are subject to the harmless error rule, 

and an erroneous jury instruction requires reversal only if the 

error adversely affects the substantial rights of the complaining party.7

 A litigant is entitled to have the jury instructed 

upon only those theories of the case which are presented 

by the pleadings and which are supported by competent 

evidence.8

2 See Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017).

3 Id.

4 Id.

5 Cohan v. Medical Imaging Consultants, 297 Neb. 111, 900 N.W.2d 732 

(2017), modified on denial of rehearing 297 Neb. 568, 902 N.W.2d 98.

6 Armstrong, supra note 2.

7 Jay v. Moog Automotive, 264 Neb. 875, 652 N.W.2d 872 (2002).

8 Armstrong, supra note 2.
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[7] To establish reversible error from a court’s failure to 

give a requested jury instruction, an appellant has the burden 

to show that (1) the tendered instruction is a correct statement 

of the law, (2) the tendered instruction was warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s 

failure to give the requested instruction.9 However, if the 

instructions given, which are taken as a whole, correctly state 

the law, are not misleading, and adequately cover the issues 

submissible to a jury, there is no prejudicial error concerning 

the instructions and necessitating a reversal.10

(a) Rodriguez Was Not Entitled to Have 

Nondelegable Duty Language Included 

in Jury Instructions

Rodriguez contends that the court erred by not including 

nondelegable duty of care language in jury instruction No. 2. 

She argues that experts on both sides testified that whether 

Rodriguez was returned to surgery was ultimately Fitzke’s 

decision, as her attending surgeon. Additionally, she argues 

that she was prejudiced by the potential for jurors to believe 

that other doctors were negligent in not returning her to surgery 

and cites the jury’s question about Duch’s note as evidence of 

the confusion.

Appellees contend that the nondelegable duty doctrine is 

not applicable here, because there was no allegation of a negligent error or omission by a person other than Fitzke. They 

also argue that Rodriguez was not prejudiced, because there 

was no attempt to shift the blame to a nonparty and the court 

gave another instruction that Fitzke could still be liable even if 

another individual was also negligent.

[8] Generally, one who employs an independent contractor 

is not vicariously liable for physical harm caused to another by 

the acts or omissions of the contractor or its servants.11 This is 

9 Id.

10 Id.

11 See Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014).
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the general rule, because an employer of an independent contractor generally has no control over the manner in which the 

work is to be done by the contractor, so the contractor, rather 

than the employer, is the proper party to be charged with the 

responsibility of preventing the risk and bearing and distributing it.12 An employer’s liability for the breach of a nondelegable duty, however, is an exception to this general rule.13

[9,10] A nondelegable duty means that an employer of 

an independent contractor, by assigning work consequent to 

a duty, is not relieved from liability arising from the delegated duties negligently performed.14 As a result of a nondelegable duty, the responsibility or ultimate liability for proper 

performance of a duty cannot be delegated, although actual 

performance of the task required by a nondelegable duty may 

be done by another.15 Thus, the person owing a nondelegable 

duty is not excused from taking the necessary precautions by 

contracting with or relying on others to take necessary precautionary measures.16

Whether a duty is nondelegable is a question of law.17 There 

is no set formula for determining when a duty is nondelegable.18

“‘Indeed, whether a particular duty is properly categorized as 

“nondelegable” necessarily entails a sui generis inquiry, since 

the conclusion ultimately rests on policy considerations.’”19 In 

a given case, the policy question facing a court is whether, on 

the facts presented, the public interest warrants imposition upon 

a person who has delegated a task the duty to guard against 

12 Id.

13 Eastlick v. Lueder Constr. Co., 274 Neb. 467, 741 N.W.2d 628 (2007). 

Accord Gaytan, supra note 11.

14 Gaytan, supra note 11.

15 Breeden v. Anesthesia West, 265 Neb. 356, 656 N.W.2d 913 (2003).

16 Id.

17 Id.

18 Id.

19 Id. at 363, 656 N.W.2d at 920.
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risks implicit in the performance of the task.20 Courts have often 

deemed a duty to be nondelegable when the responsibility is so 

important to the community that the employer should not be 

permitted to transfer it to another.21

In Long v. Hacker,

22 we held that a head surgeon is ultimately liable for the negligent acts or omissions of the individuals assisting him or her in surgery.23 However, we have 

also held that surgeons are not liable for the failure of hospital 

employees to execute reasonable instructions left for the treatment of the patient.24 We have not before considered whether 

an attending surgeon has a nondelegable duty to diagnose and 

treat a patient by returning the patient to surgery when necessitated by his or her condition.

In Morgan v. Mysore,

25 the plaintiff alleged that the defendant, the internist in charge of the patient’s care, was negligent 

in failing to make a timely diagnosis and treat the patient 

appropriately. The trial court rejected the plaintiff’s requested 

jury instruction that the defendant had a nondelagable duty 

“‘to be aware of all reasonably available medical information significant to the health of his patient during the time 

that he is providing medical care to his patient.’”26 The Court 

of Appeals affirmed the lower court’s decision, because the 

plaintiff “did not present evidence that [the defendant] delegated or assigned duties in regard to [the patient’s] available medical information and [the defendant] did not contend 

20 Id.

21 Id.

22 Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (1994).

23 See, also, Hawkes v. Lewis, 252 Neb. 178, 560 N.W.2d 844 (1997);

Swierczek v. Lynch, 237 Neb. 469, 466 N.W.2d 512 (1991).

24 Darrah v. Bryan Memorial Hosp., 253 Neb. 710, 571 N.W.2d 783 (1998), 

citing Reifschneider v. Nebraska Methodist Hosp., 222 Neb. 782, 387 

N.W.2d 486 (1986).

25 Morgan v. Mysore, 17 Neb. App. 17, 756 N.W.2d 290 (2008).

26 Id. at 26, 756 N.W.2d at 298.
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that [he] was not required to be aware of all the medical information.”27

[11] Based on our longstanding precedent on vicarious 

liability and the nondelegable duty exception, we agree that 

a nondelegable duty instruction is not appropriate when there 

are no judicial admissions or evidence that a defendant had 

assigned the performance of his duties to a subordinate party 

at the time that the alleged breach occurred.

Here, the court declined to include the following nondelegable duty language requested by Rodriguez in jury instruction No. 2: “[T]he Court has determined as a matter of law 

that the obligation to return the plaintiff to surgery on the 

18th or the 19th, . . . if any, . . . was that of Defendant Greg 

Fitzke, M.D.”

There were no judicial admissions or evidence that Fitzke 

had assigned his duty to diagnose or treat Rodriguez to a 

subordinate on April 18 or 19, 2012. Further, Fitzke, and 

experts on both sides, testified that, as Rodriguez’ attending 

surgeon, it was ultimately his decision whether or not to return 

Rodriguez to surgery on April 18 or 19 and that no other doctor 

could force Fitzke to return her to surgery. Therefore, assuming, without deciding, that Fitzke had a nondelegable duty 

to diagnose and treat Rodriguez by returning her to surgery, 

the evidence did not support a nondelegable duty instruction. 

Consequently, the court did not abuse its discretion in rejecting 

the instruction.

Rodriguez’ argument that she was prejudiced by the potential 

for jurors to find other parties negligent without this instruction and reference to the jury’s question regarding Duch’s note 

are unavailing. First, as discussed above, the negligence of 

another party was irrelevant, absent evidence that Fitzke had 

delegated his duty to diagnose or treat Rodriguez to another 

party. Second, while there was evidence adduced regarding 

the negligence of other doctors and nurses and Fitzke testified 

27 Id.
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that another surgeon could have returned Rodriguez to surgery 

if her condition necessitated it, a different instruction by the 

court informed the jury that the negligence of other parties was 

no defense to finding Fitzke liable for Rodriguez’ entire injury 

if he was also negligent.

(b) Rodriguez Cannot Show Prejudice From 

Court’s Denial of Her Preexisting 

Condition Instructions

Rodriguez requested two alternative instructions on preexisting conditions. Initially, she contends that there was evidence 

that she had a preexisting condition consisting of a necrotic 

gallbladder prior to April 17, 2012. In the alternative, she contends that there is evidence that beginning April 16, she had a 

preexisting condition of a perforated bowel resulting from her 

surgery on that date, which perforation continued until April 

20, when it was repaired. She argues that both her instructions are correct statements of the law and are supported by 

the evidence adduced at trial. Additionally, she asserts that she 

was prejudiced by the jury’s not knowing that it could rule in 

her favor even if her damages could not be separated from the 

injuries resulting from her preexisting conditions.

Appellees contend that Rodriguez was not prejudiced by 

the court’s rejection of her instructions, because the instructions concern only the apportionment of damages and, by 

entering a general verdict, the jury never reached the issue 

of damages.

Rodriguez requested the following instruction, which is partially based on NJI2d Civ. 4.09:

There is evidence that the Plaintiff had a pre-existing 

condition consisting of a necrotic gallbladder prior to 

April 17, 2012. The Defendants are only liable for any 

damages that you find to be proximately caused by the 

Defendants’ medical negligence.

If you cannot separate damages caused by the preexisting conditions from those caused by the medical 
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negligence, then the Defendants are liable for all of 

those damages.

The Defendants may be liable for harm to the Plaintiff 

even though her ultimate injury is greater than usual 

due to the pre-existing gallbladder condition which predisposed her to at least some minimal post-operative 

care. In short, the Defendants take the Plaintiff as they 

find her.

In the alternative, Rodriguez requested the following 

instruction:

There is evidence that beginning April 16, 2012, 

Plaintiff had a perforated bowel resulting from her April 

16, 2012 surgery, which perforation continued until April 

20, 2012 when it was repaired. Plaintiff claims it was 

not timely repaired and Defendant is only liable for any 

damages that you find to be proximately caused by the 

delay. If you cannot separate damages caused by the preexisting perforation from those caused by the delay, then 

Defendant is liable for all of those damages.

[12] In David v. DeLeon,

28 we held that a preexisting condition jury instruction, which was similar to the first two 

paragraphs of Rodriguez’ initial instruction, did not permit a 

jury to assess damages in any amount unless the plaintiff first 

proved proximate cause.

In Golnick v. Callender,

29 we considered whether the court 

committed error in giving a preexisting condition jury instruction similar to the first two paragraphs of Rodriguez’ initial 

instruction but omitting the third paragraph, which was similar 

to the third paragraph of Rodriguez’ instruction. We held that 

the plaintiff was not prejudiced because, unlike cases where 

we approved all three paragraphs, the jury had returned a general verdict.

28 David v. DeLeon, 250 Neb. 109, 547 N.W.2d 726 (1996).

29 Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (2015).
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[13] We stated that “[w]hen the jury returns a general verdict 

for one party, we presume that the jury found for the successful party on all issues raised by that party and presented to the 

jury.”30 Accordingly, we interpreted the verdict as finding that 

the plaintiff failed to prove that the defendant was the proximate cause of the plaintiff’s injuries.

Here, the jury also returned a general verdict. Accordingly, 

we presume that the jury found for appellees on all issues 

presented to it. Because the jury presumably decided that 

Fitzke was not negligent or the proximate cause of Rodriguez’ 

injuries, the jury never reached the issues of preexisting conditions or damages. Accordingly, this assignment of error is 

without merit.

2. Record on Appeal Is Insuffici

Whether Trial Court Erred in Permi

Taddeucci to Answer Certain 

Rodriguez contends that Taddeucci should not have been 

allowed to provide standard of care opinions regarding Fitzke’s 

postoperative care, because appellees did not disclose in discovery that Taddeucci would provide such opinions. She argues 

that appellees violated Neb. Ct. R. Disc. § 6-326(e)(1)(B) by 

not supplementing their interrogatory to disclose that Taddeucci 

would testify regarding postoperative care. She argues that the 

appropriate sanction was to preclude Taddeucci from testifying 

about Rodriguez’ postoperative care.

Appellees contend that they did not violate § 6-326(e)(1)(B), 

because Rodriguez called Taddeucci in her case in chief and 

questioned him extensively regarding Fitzke’s postoperative 

care. Accordingly, they assert that she opened the door to 

cross-examination on the subject and that the question and 

answer Rodriguez identified did not call for or elicit a standard 

of care opinion.

30 Id. at 410, 860 N.W.2d at 193-94.
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The Nebraska Court Rules of Discovery in Civil Cases provide, in relevant part, the following:

[Rule 26]

§ 6-326. General provisions governing discovery.

. . . .

(b) Scope of Discovery. Unless otherwise limited by 

order of the court in accordance with these rules, the 

scope of discovery is as follows:

. . . .

(4) Trial Preparation: . . . .

(A)(i) A party may through interrogatories require any 

other party to identify each person whom the other party 

expects to call as an expert witness at trial, to state the 

subject matter on which the expert is expected to testify, 

and to state the substance of the facts and opinions to 

which the expert is expected to testify and a summary of 

the grounds for each opinion.

. . . .

(e) Supplementation of Responses. A party who has 

responded to a request for discovery with a response that 

was complete when made is under no duty to supplement his or her response to include information thereafter 

acquired, except as follows:

(1) A party is under a duty seasonably to supplement 

his or her response with respect to any question directly 

addressed to

. . . .

(B) the identity of each person expected to be called as 

an expert witness at trial, the subject matter on which he 

or she is expected to testify, and the substance of his or 

her testimony.31

[Rule 33]

§ 6-333. Interrogatories to parties.

(a) Availability; Procedures for Use. . . .

31 § 6-326.
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Each interrogatory shall be repeated and answered 

separately and fully in writing under oath . . . . The party 

submitting the interrogatories may move for an order 

under [§ 6-3]37(a) with respect to any objection to or 

other failure to answer an interrogatory.32

[Rule 37]

§ 6-337. Failure to make discovery: sanctions.

. . . .

(d) Failure of Party to Attend at Own Deposition or 

Serve Answers to Interrogatories or Respond to Request 

for Inspection. If a party . . . fails

. . . .

(2) To serve answers or objections to interrogatories 

submitted under [§ 6-3]33, after proper service of the 

interrogatories . . . .

(3) . . . the court in which the action is pending on 

motion may make such orders in regard to the failure as 

are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision 

(b)(2) of this rule.

. . . .

The failure to act described in this subdivision may 

not be excused on the ground that the discovery sought 

is objectionable unless the party failing to act has applied 

for a protective order as provided by [§ 6-3]26(c).33

Further, a sanction authorized by § 6-337(b)(2)(B) is “[a]n 

order refusing to allow the disobedient party to support or 

oppose designated claims or defenses, or prohibiting him or 

her from introducing designated matters in evidence.”

Appellees’ answers to Rodriguez’ interrogatories and designation of experts included the following:

Interrogatory No. 17: Identify each expert witness 

whom you intend to call to testify at trial in this action 

and state for each such expert:

32 Neb. Ct. R. Disc. § 6-333.

33 Neb. Ct. R. Disc. § 6-337.
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(a) The subject matter on which the expert is expected 

to testify;

(b) The substance of facts and opinions on which the 

expert is expected to testify;

(c) The basis for each opinion to be given by the 

expert . . . .

. . . .

Supplemental Answer:

. . . .

5a. Raymond Taddeucci . . . [;]

b. Dr. Taddeucci is expected to express the opinions 

set forth in his deposition taken by [Rodriguez;]

c. The operative technique of Dr. Fitzke complied with 

reasonable standards of care[;]

d. The basis is expected to be set forth in the deposition 

of Dr. Taddeucci taken by [Rodriguez] and information 

set forth in the medical records.

In Rodriguez’ opening brief, she identified the following 

question as erroneously permitted, over objection, by the court:

“Q. Now, based upon the — looking at this without the 

hindsight of knowing there turned out to be an intestinal 

perforation, looking at this from the standpoint of what 

was known to the physicians attending . . . Rodriguez 

throughout the period that we’ve talked about here today, 

was there ever a point where in your opinion the patient 

was required to be taken back to surgery?”34

In Rodriguez’ reply brief, she also argued that she was prejudiced by Taddeucci’s being permitted to respond, over objection, to the following question: “‘With regards to the decision 

of . . . Fitzke to cancel the CT scan, do you believe that complied with the appropriate standards of care?’”35

[14] We begin by noting that the purpose of an appellant’s reply brief is to respond to the arguments the appellee 

34 Brief for appellant at 23.

35 Reply brief for appellant at 9.
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has advanced against the errors assigned in the appellant’s 

initial brief.36 While this second question is encompassed in 

Rodriguez’ assignment of error, her attempt to raise it for the 

first time in her reply brief is untimely, because it gave appellees no opportunity to respond.37

[15] Further, it is incumbent upon the appellant to present a 

record supporting the errors assigned; absent such a record, an 

appellate court will affirm the lower court’s decision regarding 

those errors.38

The question Rodriguez bases her claim on concerns the 

postoperative care provided to Rodriguez by Fitzke. Regarding 

Rodriguez’ interrogatory requesting appellees to identify the 

scope of opinions that Taddeucci would provide, appellees 

stated that he would provide opinions regarding Fitzke’s operative technique and “the opinions set forth in his deposition 

taken by [Rodriguez].”

Rodriguez’ deposition of Taddeucci is not included in the 

record. Accordingly, we do not know whether the subject of 

Fitzke’s postoperative care was discussed in the deposition. 

Therefore, we are unable to assess whether appellees failed to 

comply with § 6-326, because we cannot determine the scope 

of Taddeucci’s expected testimony that was actually disclosed 

in the interrogatory. Because Rodriguez failed to satisfy her 

duty to present a record that supported her assignment of error, 

we affirm the court’s ruling on this issue.

3. Fitzke’s Testimony Was Permitted 

Nebraska Rules of Evi

Rodriguez argues that, in response to one of her questions, 

Fitzke provided a nonresponsive, hearsay answer that stated 

the opinion of Allen, who was not designated as an expert. 

She again contends that appellees violated § 6-326 by failing 

36 Hike v. State, 297 Neb. 212, 899 N.W.2d 614 (2017).

37 Id.

38 In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017).
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to disclose Allen as an expert, her opinion, and the relevant 

foundation for her opinion. Rodriguez further contends that 

classifying the testimony as Fitzke’s perception is merely pretext to admit Allen’s testimony.

Appellees argue that Fitzke did not provide Allen’s opinion. 

Instead, they contend that he stated only his perception of 

her opinion, which said nothing about the truth of his belief. 

Further, they assert that the answer was directly responsive 

to Rodriguez’ line of questioning and that precise question 

because it was asking if he disregarded her opinion.

Rodriguez’ objection concerned Fitzke’s answer to the 

final question from Rodriguez’ attorney in the following 

interchange:

Q. Okay. And did Dr. Allen put at the bottom here, 

question mark, “Need to go back to OR”?

A. She did write that, yes.

Q. So there is at least one question mark in this record 

relative to your return — relative to the question of 

whether you need to take her back to surgery; correct?

A. An internist questioned whether or not going back 

to the operating room would be helpful.

Q. So this is the second time that an internist, meaning a hospitalist, has had a suggestion about the care and 

you’ve answered the question, no. We’ve heard about the 

CAT scan and going back to the OR; correct?

A. No, that’s not correct. I canceled the CAT scan, and 

there was a question as to — from Dr. Allen’s standpoint 

as to whether we felt going back to the operating room 

would be helpful at that point in time, and we had a discussion, and we or I decided — I ultimately decided that 

she did not need to go back to the operating room, but 

we discussed the factors that were in front of us, and I 

believe that she agreed.

(Emphasis supplied.)

Hearsay is defined as “a statement, other than one made by 

the declarant while testifying at the trial or hearing, offered 
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in evidence to prove the truth of the matter asserted.”39

Neb. Evid. R. 701, Neb. Rev. Stat. § 27-701 (Reissue 2016), 

provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited 

to those opinions or inferences which are (a) rationally 

based on the perception of the witness and (b) helpful to a 

clear understanding of his testimony or the determination 

of a fact in issue.

In his testimony, Fitzke did not relay any out-of-court 

statements made by Allen, but merely described his perception of Allen’s opinion after speaking with her. Since Fitzke’s 

statement was limited to his perception of Allen’s opinion, it 

was permissible under § 27-701. Fitzke established that he 

had firsthand knowledge of what Allen said in the discussion 

and his belief as to her opinion on the topic was an inference 

that was rationally based on the conversation of the subject. 

Further, it cannot rationally be argued that the testimony was 

not helpful to the determination of whether Fitzke breached 

the standard of care by not returning Rodriguez to surgery 

on April 19, 2012. The credibility of his opinion of her conclusion goes to the weight of the statement, rather than to 

its admissibility.40

Accordingly, his statement was not hearsay and did not support a violation of § 6-326 by presenting an undisclosed opinion of an undisclosed expert.

[16-18] Even if Fitzke’s answer was hearsay, Neb. Evid. R. 

703, Neb. Rev. Stat. § 27-703 (Reissue 2016), provides that an 

expert may rely on hearsay facts or data reasonably relied upon 

by experts in that field.41 Specifically, a medical expert may 

express opinion testimony in medical matters based, in part, 

39 Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 2016).

40 See Harmon Cable Communications v. Scope Cable Television, 237 Neb. 

871, 468 N.W.2d 350 (1991).

41 State v. Hudson, 268 Neb. 151, 680 N.W.2d 603 (2004).
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on reports or statements of others which are not in evidence 

but upon which the expert customarily relies in the practice 

of his or her profession.42 While the mere fact that an expert 

relied on hearsay, however, does not transform it from inadmissible into admissible evidence,43 we have permitted inadmissible evidence, upon which an expert relies, to be admitted on 

direct examination if it was offered not to prove the truth of 

the matter asserted but simply to demonstrate the basis for the 

expert’s testimony.44

Fitzke was disclosed as an expert who would testify regarding whether he “applied the degree of skill and knowledge 

expected of a reasonable and prudent general surgeon . . . 

managing . . . a patient post-operatively.” To the extent that 

his answer was addressing whether he exercised an appropriate degree of skill and knowledge in caring for Rodriguez 

postoperatively, Fitzke’s statement regarding his understanding of Allen’s opinion was offered to show that he believed 

he was not disregarding the opinion of another physician 

involved in Rodriguez’ treatment; it was not offered to prove 

that Allen did not believe that Rodriguez needed to be returned 

to surgery. Further, as part of his statement, Fitzke provided 

his independent opinion, which he reached, in part, based 

on Allen’s opinion. The opinion of an internist involved 

in the treatment of a postoperative patient is clearly a fact 

relied upon by experts in the medical field. Accordingly, to 

the extent that hearsay of Allen’s opinion was admitted into 

evidence through Fitzke’s testimony, it was permitted, under 

§ 27-703.

Fitzke’s answer was also responsive to the question by 

Rodriguez’ attorney. Rodriguez’ attorney had asked whether 

42 Id.

43 See Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 319 

(1994).

44 See Koehler v. Farmers Alliance Mut. Ins. Co., 252 Neb. 712, 566 N.W.2d 

750 (1997).
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Allen questioned whether Rodriguez needed to be returned 

to the operating room. He then went on to directly question whether Fitzke disregarded Allen’s opinion about whether 

Rodriguez needed to be returned to the operating room. 

Accordingly, Fitzke’s statement that he discussed the note 

Allen made with her and believed that she changed her opinion 

to agree with him was directly relevant to whether or not he 

was disregarding her opinion. Accordingly, this assignment of 

error is without merit.

V. CONCLUSION

We find that the court did not err in rejecting Rodriguez’ 

proposed jury instructions or jury instruction language. Further, 

we find that the record on appeal is insufficient to review 

whether the court erred in permitting Taddeucci to answer 

certain questions. Finally, we conclude that the court did not 

abuse its discretion by ruling Fitzke’s answer was admissible. 

Therefore, we affirm.

Affirm

Wright, J., not participating in the decision.