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Cite as 24 Neb. App. 632

Sheena Ammon, Special Administ

the Estate of Patricia Cody, appella

v. Stephen Nagengast, M.D

General Surgery Associa

LLC, appellee

___ N.W.2d ___

Filed April 18, 2017. No. A-15-1184.

1. Jury Instructions: Appeal and Error. Whether a jury instruction 

is correct is a question of law, which an appellate court independently decides.

2. ____: ____. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction 

was prejudicial and otherwise adversely affected a substantial right of 

the appellant.

3. Negligence: Liability: Damages. Generally, an act wrongfully done by 

the joint agency or cooperation of several persons, or done contemporaneously by them without concert, renders them liable for all damages, 

both economic and noneconomic, jointly and severally.

4. Negligence: Tort-feasors: Liability: Damages. Under joint and several 

liability, either tort-feasor may be held liable for the entire damage, 

and a plaintiff need not join all tort-feasors as defendants in an action 

for damages.

5. Tort-feasors: Compromise and Settlement. If a plaintiff settles with 

one of the jointly and severally liable tort-feasors, then the plaintiff’s 

recovery against the remaining tort-feasors is reduced by the actual 

settlement amount.

6. Parties: Time. The proper timeframe to consider whether there are multiple defendants is when the case is submitted to the finder of fact.

7. Tort-feasors: Liability: Damages. Under the comparative fault statutory scheme in Nebraska, joint tort-feasors who are defendants in an 

action involving more than one defendant share joint and several liability to the claimant for economic damages.

Nebraska Supreme Court Online Library

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

04/18/2017 09:09 AM CDT
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8. Tort-feasors: Compromise and Settlement: Liability. When the claimant settles with a joint tort-feasor, the claimant forfeits that joint and 

several liability.

9. Tort-feasors: Compromise and Settlement. The claimant cannot 

recover from the nonsettling joint tort-feasor more than that tort-feasor’s 

proportionate share in order to compensate for the fact that the claimant 

made a settlement with another that may prove to be inadequate.

10. 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.

11. Jury Instructions. The general rule is that whenever applicable, the 

Nebraska Jury Instructions are to be used.

12. Waiver: Appeal and Error. Errors not assigned in an appellant’s initial 

brief are waived and may not be asserted for the first time in a reply 

brief or during oral argument.

Appeal from the District Court for Otoe County: Jeffrey J. 

Funke, Judge. Affirme

Greg Garland, of Greg Garland Law, Tara DeCamp, of 

DeCamp Law, P.C., L.L.O., Kent A. Schroeder, of Ross, 

Schroeder & George, L.L.C., and Kathy Pate Knickrehm 

for appellant.

William L. Tannehill and John P. Weis, of Wolfe, Snowden, 

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

Moore, Chief Judge, and Inbody and Pirtle, Jud

Pirtle, Judge

INTRODUCTION

Sheena Ammon, the special administrator of the estate 

of Patricia Cody, brought a medical malpractice action 

against Denise Husen Murry; Murry’s employer, Sleep Tight 

Anesthesia, P.C.; St. Mary’s Community Hospital; Stephen 

Nagengast, M.D.; and Nagengast’s employer, General Surgery 

Associates LLC (GSA). Ammon alleged that the defendants 

were professionally negligent and that their joint and several acts proximately caused injury to and the death of her 

mother, Cody.
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Prior to trial, the claims against several of the defendants 

were resolved by settlement. The case was tried to a jury, 

which returned a verdict in favor of the remaining defendants, 

Nagengast and GSA. Ammon timely appealed. Finding no 

reversible error, we affirm.

BACKGROUND

The underlying facts of this case are not in dispute. Cody 

underwent a medical procedure to remove abdominal adhesions 

at St. Mary’s Community Hospital in Nebraska City, Nebraska, 

on January 23, 2012. Nagengast, a board-certified general surgeon who has been licensed to practice medicine in Nebraska 

since 1991, was scheduled to perform the surgery.

A certified nurse anesthetist (CRNA), Murry, assisted 

Nagengast. Murry was employed as an independent practitioner at the time of the surgical procedure. Nagengast experienced “difficulty insufflating” Cody at the start of the laparoscopic procedure, and opted to change to an “open technique.” 

Roughly 5 minutes into the procedure, Murry alerted Nagengast 

that Cody was doing poorly and that the procedure needed to 

be aborted.

Cody no longer had a pulse, and her condition did not 

improve once the “insufflation gas” was removed. Nagengast 

testified that he was not informed of any change in Cody’s 

condition until she was in cardiac arrest. Oxygen was provided 

to Cody and the “advanced cardiac life support” protocol, 

including the administration of cardiopulmonary resuscitation 

(CPR), began immediately. The medical staff performed CPR 

for 15 minutes, and after Cody’s cardiac status resumed, she 

was transferred to a hospital in Lincoln, Nebraska, where she 

died on January 24, 2012.

Ammon, the special administrator of Cody’s estate, brought 

a medical malpractice action against Murry, Sleep Tight 

Anesthesia, St. Mary’s Community Hospital, Nagengast, and 

GSA. Ammon alleged that Murry, Nagengast, and St. Mary’s 

Community Hospital were professionally negligent and that 
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their joint and several acts proximately caused the injury to and 

the death of Cody.

On November 14, 2014, St. Mary’s Community Hospital 

was dismissed from this action with prejudice. Prior to trial, 

Ammon, Murry, and/or Sleep Tight Anesthesia reached a confidential settlement agreement, and the claims against them 

were dismissed with prejudice. The only remaining parties 

at trial were Nagengast and GSA (hereinafter collectively 

appellees).

At trial, the issue before the jury was whether Nagengast 

was professionally negligent in “failing to place . . . Cody 

in the Trendelenburg position and the Durant’s position upon 

being notified the laparoscopic procedure should be aborted.”

Raymond J. Lanzafame, M.D., is a general surgeon licensed 

to practice medicine in the State of New York. Lanzafame’s 

videotaped deposition was presented at trial, and the video 

and the deposition transcript were entered as exhibits. He 

testified that it would have been appropriate for Nagengast 

to reposition Cody in the Trendelenburg position and the 

Durant’s position. The Trendelenburg position is “head 

down,” relative to the patient’s feet, and the Durant’s position features the patient on her left side, or in the “left lateral decubitus” position. He testified that the purpose of 

repositioning the patient would be to release an “airlock [or] 

gas bubble” that could have accumulated in the heart, preventing the flow of blood into the pulmonary circuit. This 

would allow a bubble to rise to the top and allow gravity to 

move blood through the heart.

Lanzafame testified that after attempting to reposition the 

patient, if the situation warranted, it would be proper to institute the advanced cardiac life support protocol. Lanzafame 

testified that Nagengast did not follow this standard of care 

and that this breach directly caused Cody’s injuries, the result 

of which was death by permanent brain damage due to lack 

of oxygen.
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He testified that if Nagengast had known Cody’s “end tidal” 

carbon dioxide level had dropped before the arrhythmia, it 

would have made a heart attack much less likely as the primary event. Lanzafame testified that information regarding a 

drop in end tidal carbon dioxide was not communicated by 

Murry to Nagengast and that this information would have aided 

Nagengast’s diagnostic process.

Nagengast testified that at the time Cody was transferred 

to the hospital in Lincoln, the doctors had ruled out pneumothorax, but had not ruled out myocardial infarction, arrhythmia, 

pulmonary embolism, or venous air embolism. It is difficult 

to rule out these conditions in an emergency setting because 

the proper equipment is not available in an operating room. 

Nagengast testified that after seeing additional evidence and 

studies, which were not available at the time Cody was treated, 

he was able to rule out some of those causes. He testified that 

there was “no doubt in [his] mind that she died of a venous air 

embolism,” which is a very rare, but recognized, complication 

related to the surgery he performed.

Nagengast stated that positional changes, such as placing 

the patient in the Durant’s position, are to be used, unless 

the patient has had a cardiovascular collapse. He testified 

that when a patient is in cardiopulmonary arrest, even from 

a venous air embolism, it is recognized that “you should proceed with CPR and not positioning changes.” The advanced 

cardiac life support protocol is used to treat myocardial infarction, ischemic arrhythmia, pulmonary embolism, or venous air 

embolism. Nagengast testified that he met the standard of care 

of a reasonable surgeon under the circumstances and that if he 

were placed in the same situation again, he would follow the 

same procedure he used with Cody.

Greg A. Fitzke, M.D., is a general surgeon practicing medicine in Lincoln. He became board certified in 2005, and he 

testified as an expert witness in this case. Fitzke opined that 

the most appropriate action under the circumstances was to 

initiate CPR, rather than positional changes, because Cody was 
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in cardiac arrest. He testified that, in his opinion, Nagengast 

provided the expected standard of care, in all respects, under 

the circumstances.

Ammon’s counsel objected to jury instructions Nos. 2 and 

24, and the objections were overruled.

Jury instruction No. 2 stated as follows:

STATEMENT OF THE CASE—NEGLIGENCE

I. Plaintiff’s Claims

A. ISSUES

This is a medical malpractice or professional negligence 

action filed by Sheena Ammon, as Special Administrator 

of the Estate of Patricia Cody, deceased, against Stephen 

Nagengast, M.D. and General Surgery Associates, LLC 

(“GSA”) arising out of a surgical procedure performed on 

Patricia Cody on January 23, 2012.

There are two Defendants in this lawsuit. The interests of Dr. Nagengast and GSA are the same. If you find 

in favor of one of them, you must find in favor of both 

of them. If you find against one of them, you must find 

against both of them.

Plaintiff claims that Defendant Dr. Nagengast was professionally negligent in the following way:

1. In failing to place Patricia Cody in the Trendelenburg 

position and the Durant’s position upon being notified the 

laparoscopic procedure should be aborted.

Patricia Cody was pronounced deceased on January 24, 

2012. Plaintiff claims Patricia Cody’s death was a result 

of the alleged professional negligence and seeks a judgment against the Defendants for the damages which she 

alleges resulted from Patricia Cody’s death.

Dr. Nagengast and GSA admit that Dr. Nagengast 

had a patient relationship with Patricia Cody and provided surgical treatment to Patricia Cody on January 23, 

2012. They deny that Dr. Nagengast was negligent in 

his treatment of Patricia Cody and further deny that any 

alleged departure from the standard of care by him was a 
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proximate cause of her death or of the damages claimed. 

Dr. Nagengast and GSA claim that Dr. Nagengast acted 

in a reasonable manner and in full compliance with all 

appropriate standards of care. They also denied the nature 

and extent of Plaintiffs damages.

B. BURDEN OF PROOF

Before the Plaintiff can recover against Dr. Nagengast 

and GSA, Plaintiff must prove, by the greater weight of 

the evidence, each and all of the following:

1. That Dr. Nagengast was professionally negligent in 

one or more of the ways claimed by the plaintiff.

2 That any such professional negligence of Dr. 

Nagengast was a proximate cause of decedent’s death.

3. That the death of the decedent was a proximate 

cause of some damage to her “next of kin”; and

4. The nature and extent of any pecuniary losses sustained by the “next of kin” as a result of the decedent’s 

death. “Next of kin” is defined for you in Instruction 

No. 11.

C. EFFECT OF FINDINGS

1. If the Plaintiff has not met her burden of proof with 

respect to the Defendants, then your verdict must be for 

the Defendants, and you will use Verdict Form No. 1 (in 

favor of Dr. Nagengast and GSA).

2. If the Plaintiff has met her burden of proof with 

respect to the Defendants, then you must consider the 

defendant’s affirmative defense.

Defendant’s Defense

A. Issues

In defense of Plaintiff’s claim, Defendants allege that 

if any negligence occurred, it was committed by Denise 

Murry, CRNA, in the performance of the surgical procedure in the following way:

1. Failing to inform Dr. Nagengast that Patricia Cody’s 

end tidal CO2 dropped prior to Patricia Cody experiencing 

cardiac arrhythmias.
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B. Burden of Proof

In connection with Defendants’ claim that Denise 

Husen (Murry), CRNA, was negligent, the burden is upon 

the defendants by the greater weight of the evidence to 

prove both of the following:

1. That Denise Husen (Murry), CRNA, was negligent 

in one or more ways claimed by the defendants;

2. That this negligence on the part of Denise Husen 

(Murry), CRNA, was a proximate cause of plaintiff’s 

damages.

C. EFFECT OF FINDINGS

1. If the plaintiff has met her burden of proof and the 

defendant has not met his burden of proof, then your verdict must be for the plaintiff.

2. If the Plaintiff has met her burden of proof with 

respect to the Defendants and the Defendants have not

met their burden of proof with respect to Denise Husen 

(Murry), CRNA, then you must use Verdict Form No. 2.

3. If the Plaintiff has met her burden of proof with 

respect to the Defendants and the Defendants have met 

their burden of proof with respect to Denise Husen 

(Murry), CRNA, then you must use Verdict Form No. 3 

allocating their negligence.

(Emphasis in original.)

Jury instruction No. 24 explained how the jury would calculate damages if the jury determined the damages should be 

allocated between appellees and Murry.

The jury returned a unanimous verdict for appellees, using 

verdict form No. 1. Ammon timely appealed.

ASSIGNMENT OF ERROR

Ammon asserts:

The trial court erred by submitting Instructions number[s] 

2 and 24 and Verdict Forms 2 and 3 to the jury concerning the negligence of Husen (Murry) and apportionment of damages and in failing to properly instruct the 
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jury concerning [Appellees’] negligence relative to their 

defense that [Cody’s] injuries and damages were the 

proximate result of the actions or in-actions of others over 

whom they had no control.

STANDARD OF REVIEW

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

which an appellate court independently decides. RM Campbell 

Indus. v. Midwest Renewable Energy, 294 Neb. 326, 886 

N.W.2d 240 (2016).

[2] In an appeal based on a claim of an erroneous jury 

instruction, the appellant has the burden to show that the 

questioned instruction was prejudicial and otherwise adversely 

affected a substantial right of the appellant. Scheele v. Rains, 

292 Neb. 974, 874 N.W.2d 867 (2016).

ANALYSIS

Ammon argues the trial court erred in submitting jury 

instructions Nos. 2 and 24, as well as verdict forms Nos. 2 

and 3 to the jury. However, we note that verdict forms Nos. 

2 and 3 were not included in the record. Only verdict form 

No. 1 is found in the record presented to us in this appeal. 

Citing Neb. Rev. Stat. § 25-21,185.10 (Reissue 2016) and 

Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d 455 (2001), 

Ammon asserts that only one defendant remained at the time 

the case was submitted to the jury and that the jury should 

not have been permitted to allocate a percent of damages or 

negligence to the defendants who were no longer part of the 

proceedings. She asserts that because appellees were the only 

remaining defendants when the case was submitted to the jury, 

the instructions regarding an allocation of negligence to Murry 

and Sleep Tight Anesthesia incorrectly stated the law and were 

misleading. We disagree.

Ammon’s only assignment of error relates to the appropriateness of the jury instructions provided in this case and, 

more specifically, to whether Murry’s negligence should have 
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been submitted to the jury under any circumstance. However, 

to be able to determine whether the court erred in giving 

instructions regarding the allocation of negligence, we must 

examine the applicability of the comparative fault statutes 

governing joint and several liability in civil actions.

[3-5] The Nebraska Supreme Court has considered the applicability of § 25-21,185.10 and Neb. Rev. Stat. § 25-21,185.11 

(Reissue 2016) in situations similar to the circumstances of 

this case. Generally, under Nebraska common law, an act 

wrongfully done by the joint agency or cooperation of several 

persons, or done contemporaneously by them without concert, renders them liable for all damages, both economic and 

noneconomic, jointly and severally. Tadros v. City of Omaha, 

273 Neb. 935, 735 N.W.2d 377 (2007). Under such joint and 

several liability, either tort-feasor may be held liable for the 

entire damage, and a plaintiff need not join all tort-feasors as 

defendants in an action for damages. Id. Also, in accordance 

with the underpinnings of joint and several liability, our common law follows the traditional rule that if the plaintiff settles 

with one of the jointly and severally liable tort-feasors, then 

the plaintiff’s recovery against the remaining tort-feasors is 

reduced by the actual settlement amount. Id.

[6] Ammon argues that the provisions of § 25-21,185.10 

are inapplicable because there was only one defendant in this 

case at the time the case was submitted to the jury. In Maxwell 

v. Montey, supra, the Nebraska Supreme Court explained that 

if the action does not involve multiple party defendants, then 

§ 25-21,185.10 is not applicable. The proper timeframe to consider whether there are multiple defendants is when the case is 

submitted to the finder of fact. See id. Because Murry was no 

longer a defendant in Ammon’s action at the time the case was 

submitted to the jury, we agree that § 25-21,185.10 is inapplicable to the question of apportionment of liability between 

appellees and Murry. However, unlike in Maxwell v. Montey, 

supra, Murry was not merely dismissed as a party—she was 

dismissed pursuant to a settlement agreement.
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In Tadros v. City of Omaha, supra, the Nebraska Supreme 

Court determined that § 25-21,185.11 abrogated common law 

with regard to the apportionment of liability between a party 

defendant joint tort-feasor and a nonparty settling tort-feasor.

Section 25-21,185.11 states in full:

(1) A release, covenant not to sue, or similar agreement entered into by a claimant and a person liable shall 

discharge that person from all liability to the claimant 

but shall not discharge any other persons liable upon the 

same claim unless it so provides. The claim of the claimant against other persons shall be reduced by the amount 

of the released person’s share of the obligation as determined by the trier of fact.

(2) A release, covenant not to sue, or similar agreement entered into by a claimant and a person liable shall 

preclude that person from being made a party or, if an 

action is pending, shall be a basis for that person’s dismissal, but the person’s negligence, if any, shall be considered in accordance with section 25-21,185.09.

(Emphasis supplied.)

We note that Neb. Rev. Stat. § 25-21,185.09 (Reissue 2016) 

dictates the effect that a claimant’s contributory negligence 

has on the claimant’s recovery. There was no allegation of any 

contributory negligence chargeable to Cody, so § 25-21,185.09 

is not applicable to this case.

Ammon asserts that Neb. Rev. Stat. §§ 25-21,185.07 to 

25-21,185.12 (Reissue 2016), the statutes which govern civil 

actions to which contributory negligence is a defense, apply 

only to cases in which contributory negligence of the claimant

is at issue. She argues that because Cody’s negligence was not 

at issue, these statutes, specifically § 25-21,185.11(2), do not 

apply in this case.

Traditionally, contributory negligence is defined as “[a] 

plaintiff’s own negligence that played a part in causing the 

plaintiff’s injury . . . .” Black’s Law Dictionary 1196 (10th ed. 

2014). However, it also can be defined as “[t]he negligence of 
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a third party — neither the plaintiff nor the defendant — whose 

act or omission played a part in causing the plaintiff’s injury.” 

Id. at 1197. In this case, appellees asserted the negligence of 

a settling third-party tort-feasor as a defense; thus, this is a 

“civil action to which contributory negligence was asserted as 

a defense,” and the provisions of the comparative fault statutes, 

including § 25-21,185.11, are applicable.

As reflected above, § 25-21,185.11(1) plainly states that 

after the claimant settles with a joint tort-feasor, the claims 

against other persons “shall be reduced by the amount of the 

released person’s share of the obligation as determined by the 

trier of fact.”

[7-9] Under the comparative fault statutory scheme in 

Nebraska, joint tort-feasors who are “‘defendants’” in an action 

“‘involving more than one defendant’” share joint and several 

liability to the claimant for economic damages. See Tadros 

v. City of Omaha, 273 Neb. 935, 941, 735 N.W.2d 377, 382 

(2007). But, when the claimant settles with a joint tort-feasor, 

the claimant forfeits that joint and several liability. Id. The 

claimant cannot recover from the nonsettling joint tort-feasor 

more than that tort-feasor’s proportionate share in order to 

compensate for the fact that the claimant made a settlement 

with another that may prove to be inadequate. Id.

The “Special Note” which follows NJI2d Civ. 2.01 provides 

guidance to us in this case and states in part:

(§ 25-21,185.10 does not operate until the finder of fact 

has determined liability and is apportioning damages; 

“Because the statute’s effect is on only the apportionment 

of damages between multiple defendants after liability 

has been established, the proper timeframe to consider in 

determining whether there are, in fact, multiple defendants in a case is when the case is submitted to the 

finder of fact”; presumably, the just quoted rule does not 

apply when at least one defendant has been discharged 

from a lawsuit by a release, a covenant not to sue, or 

a similar agreement entered into by a claimant and a 
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person liable; all of this is discussed further at NJI2d Civ. 

5.04, Comment).

(Emphasis supplied.)

In the comment to NJI2d Civ. 5.04, the following appears:

VII. HOW DAMAGES ARE APPORTIONED 

WHEN THERE WAS MORE THAN ONE 

TORTFEASOR BUT THERE IS ONLY ONE 

DEFENDANT IN THE CASE WHEN IT IS 

SUBMITTED TO THE TRIER OF FACT.

. . . .

For purposes of the application of Nebraska’s comparative negligence statute, there are two ways this can occur, 

each with a different solution. There are two different 

ways to handle this situation, two different ways the trier 

of fact must be instructed, depending how the situation 

has arisen.

The first jury-instruction situation itself arises either 

when there was only ever one putative joint tortfeasor in 

the case or when there was more than one but all but the 

one remaining were dismissed for reasons of pleading 

or proof [(e.g., failure to state a cause of action, failure 

to prove a prima facie case, etc.)] (This was the situation in Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d 

455 (2001).) In this case, the applicable statutory section 

is Neb.Rev.Stat. § 25-21,185.10 (Reissue 2008). In this 

situation, no instruction on apportionment of damages is 

called for (or allowed).

The second jury-instruction situation arises when 

there was more than one putative joint tortfeasor in the 

case—either because the claimant originally sued or later 

brought into the case more than one alleged joint tortfeasor or a defendant brought other putative joint tortfeasors 

into the case—and all but the one remaining alleged 

tortfeasor have been dismissed from the case pursuant to 

a release, covenant not to sue, or similar agreement. This 

includes the putative tortfeasor dismissed pursuant to a 
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settlement with the plaintiff. (This was the situation in 

Tadros v. City of Omaha, 273 Neb. 935, 942, 735 N.W.2d 

377, 381 (2007).) In this case, the applicable statutory 

section is Neb.Rev.Stat. § 25-21,185.11 (Reissue 2008). In 

this situation, jury instruction on apportionment of damages is required.

(Emphasis supplied.)

In this particular case, the jury was instructed to determine 

whether Nagengast was professionally negligent in “failing to 

place . . . Cody in the Trendelenburg position and the Durant’s 

position upon being notified the laparoscopic procedure should 

be aborted.” If the jury found that Ammon had not met her 

burden of proof with respect to appellees, verdict form No. 1 

was to be used. If the jury found that Ammon met her burden 

of proof with respect to appellees, then the jury was instructed 

to consider appellees’ affirmative defense that “if any negligence occurred, it was committed by . . . Murry” for failing to 

provide information to Nagengast that would have assisted him 

in diagnosing and treating Cody’s complications during the 

surgical procedure.

The jury was instructed to use verdict form No. 2 if it found 

Ammon had met her burden of proof with respect to appellees, and appellees failed to meet their burden of proof with 

respect to Murry. The jury then was instructed to use verdict 

form No. 3 if Ammon met her burden of proof with respect 

to appellees and appellees met their burden with respect 

to Murry.

Because § 25-21,185.11 mandates reduction by the settling 

tort-feasor’s proportionate share of liability as determined by 

the trier of fact, the court did not err in allowing the jury to 

allocate negligence between appellees and Murry if the jury 

determined that Ammon had met her burden of proof with 

regard to appellees.

Ammon also asserts the trial court erred in providing 

instruction No. 24, which explained how the jury should 

total the amount of damages if the jury determined Cody’s 
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damages were caused by both Nagengast and Murry. From 

the outset of the case, Ammon asserted that Murry was negligent in the performance of her professional duties during 

Cody’s procedure. However, at the time of trial, Ammon 

argued that language related to Murry was misleading and 

prejudicial. The trial court overruled Ammon’s objection to 

instruction No. 24.

The court determined that an allocation instruction regarding 

Nagengast’s alleged negligence compared to Murry’s alleged 

negligence was warranted. The court recognized the obligation 

to correctly instruct the jury and give adequate instructions to 

explain the effects of an allocation of negligence. The court 

specifically stated:

The Court, in reviewing the evidence — there’s been 

evidence presented, first that . . . Murry . . . was a 

defendant in a case that was released and dismissed prior 

to trial and before this case is submitted to the trier of 

fact. The Court believes, as a result of that, that may 

entitle an issue of allocation. The Court believes that the 

evidence presented in, specifically, Dr. Lanzafame’s testimony and Dr. Nagengast’s testimony is that they would 

have expected, as the surgeon in charge of the OR, to be 

told positive findings, such as a drop in end-tidal CO2, 

and that would have been a relevant factor to be made 

aware of and may have had some impact on how they 

proceeded in — Dr. Nagengast proceeded in treating 

. . . Cody.

The evidence shows that Nagengast and Murry had worked 

together professionally and that they were expected to share 

information vital to the treatment of the patient. Nagengast 

testified that he relied on Murry to provide him with necessary 

information without being asked.

Ammon’s own expert witness, Lanzafame, testified that, 

based upon his review of the evidence, Murry did not communicate information to Nagengast that would have been helpful in diagnosing the complications Cody experienced during 
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the surgical procedure. Lanzafame was asked whether the two 

healthcare providers, Nagengast and Murry, misdiagnosed the 

issue that Cody experienced, and he opined that “they” misdiagnosed the cause of Cody’s “emergent issue.” Lanzafame 

testified that in his personal experience, he had relied upon 

his participating anesthetist to communicate a patient’s drop in 

carbon dioxide levels and stated that this information is important to properly treat a patient.

Prior to the close of Ammon’s case, appellees’ counsel 

made an offer of proof regarding “allocation against a released 

and dismissed defendant, under Nebraska Revised Statute 

§ 25-21,185.11,” and Ammon’s counsel agreed, without objection. As a result, it would appear that Ammon settled her case 

with a joint tort-feasor, with the knowledge that an issue of 

allocation of negligence would be forthcoming before the end 

of the trial.

[10,11] 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. RM Campbell Indus. v. Midwest Renewable Energy, 

294 Neb. 326, 886 N.W.2d 240 (2016). Given the pleadings, 

Ammon’s allegations of professional negligence by Nagengast 

and Murry, and the evidence and testimony presented at trial, 

an instruction regarding the potential allocation of negligence 

was warranted. We find the trial court correctly instructed the 

jury (over Ammon’s objections), including jury instructions 

Nos. 2 and 24, all of which appear to have been taken directly 

from the Nebraska pattern jury instructions. The general rule 

is that whenever applicable, the Nebraska Jury Instructions are 

to be used. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 

37 (2015).

Further, and perhaps most importantly, at the conclusion of 

their deliberations, the jury unanimously entered its verdict 

using verdict form No. 1, finding Ammon had not met her 

burden of proof against appellees, thereby finding in favor of 

appellees. Even if jury instructions Nos. 2 and 24 were given 
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Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

AMMON v. NAGENGAST

Cite as 24 Neb. App. 632

in error, Ammon cannot show, on these facts, that she was 

prejudiced by the instructions, because the jury found Ammon 

had failed to prove her underlying case against appellees. 

Thus, the jury never reached the issue of comparative fault 

and verdict forms Nos. 2 and 3 were not used. Hence, any 

error by the court in giving instructions Nos. 2 and 24, and 

in allowing the jury to consider verdict forms Nos. 2 and 3, 

was harmless.

[12] Finally, during oral argument, Ammon’s counsel 

asserted that because there were no opinions offered by any 

expert witness regarding a breach of the applicable standard 

of care by Murry, there could be no basis to determine her 

negligence. Although this argument was made in Ammon’s 

reply brief, it was not assigned as error nor was it argued in 

Ammon’s initial brief filed in this appeal. Errors not assigned 

in an appellant’s initial brief are waived and may not be 

asserted for the first time in a reply brief or during oral 

argument. See Genetti v. Caterpillar, Inc., 261 Neb. 98, 621 

N.W.2d 529 (2001).

CONCLUSION

We affirm the decision of the district court, entering an 

order of judgment in favor of appellees, pursuant to the jury 

verdict rendered in this case.

Affirmed