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LEWISON v. RENNER

Cite as 298 Neb. 654

Barbara Lewison, appellant

Carol Renner, app

___ N.W.2d ___

Filed January 12, 2018. No. S-17-173.

1. Motions for New Trial: Judges: Words and Phrases: Appeal and 

Error. An appellate court reviews a denial of a motion for new trial for 

an abuse of discretion. 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.

2. Negligence: Proof. To prevail in any negligence action, a plaintiff must 

show a legal duty owed by the defendant to the plaintiff, a breach of 

such duty, causation, and resulting damages.

3. Negligence: Motor Vehicles: Proof. In an automobile negligence 

action, a plaintiff must prove each of the following elements: (1) that 

the defendant was negligent in one or more of the ways alleged, (2) that 

this negligence was a proximate cause of the collision, (3) that the collision was a proximate cause of some damage to the plaintiff, and (4) the 

nature and extent of that damage.

4. Expert Witnesses. When the character of an alleged injury is subjective 

rather than objective, a plaintiff must establish the cause and extent of 

the injury through expert medical testimony.

5. Physicians and Surgeons: Expert Witnesses: Words and Phrases. 

Although expert medical testimony need not be couched in the magic 

words “reasonable medical certainty” or “reasonable probability,” it 

must be sufficient as examined in its entirety to establish the crucial causal link between the plaintiff’s injuries and the defendant’s 

negligence.

6. ____: ____: ____. Medical expert testimony regarding causation based 

upon possibility or speculation is insufficient; it must be stated as being 

at least “probable,” in other words, more likely than not.

7. Pleadings: Proof. It is an elementary rule of pleading that matters 

admitted by the pleadings need not be proved.

Nebraska Supreme Court Online Library

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

03/23/2018 08:14 AM CDT
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8. Pleadings. Generally, an admission made in a pleading on which the 

trial is had is more than an ordinary admission, it is a judicial admission.

9. Pleadings: Evidence: Waiver. A judicial admission is a formal act done 

in the course of judicial proceedings which is a substitute for evidence, 

thereby waiving or dispensing with the production of evidence by conceding for the purpose of litigation that the proposition of fact alleged 

by the opponent is true.

10. Pleadings: Intent. It is important to consider the context in which a 

judicial admission is made.

11. ____: ____. A judicial admission does not extend beyond the intendment 

of the admission as clearly disclosed by its context.

12. Negligence: Motor Vehicles: Damages. When a defendant admits the 

collision caused “some injury” but expressly denies the nature and 

extent of the injuries and damages claimed, it is improper to construe the 

admission as conceding the collision caused all of the injuries claimed 

by the plaintiff.

13. Verdicts: Appeal and Error. In determining the sufficiency of the evidence to sustain a verdict, the evidence must be considered most favorably to the successful party, every controverted fact must be resolved in 

the successful party’s favor, and the successful party is entitled to the 

benefit of any inferences reasonably deducible from the evidence.

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

party on all issues raised by that party and presented to the jury.

15. Trial: Expert Witnesses. Triers of fact are not required to take opinions 

of experts as binding upon them, and determining the weight to be given 

expert testimony is uniquely the province of the fact finder.

Appeal from the District Court for Buffalo County: John H

Marsh, Judge. Affirmed

Michael W. Meister for appellant.

Jeffrey H. Jacobsen and Nicholas R. Norton, of Jacobsen, 

Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellee.

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

Funke, JJ., and Moore, Chief Judg

Stacy, 

After an automobile collision, Barbara Lewison sued Carol 

Renner for negligence, claiming injuries to her neck, back, and 
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wrists. Renner admitted her negligence caused the collision and 

also admitted the collision caused “some injury” to Lewison, 

but specifically denied the nature and extent of the injuries 

and damages claimed. The jury returned a general verdict for 

Renner. Lewison moved for a new trial, arguing the verdict 

was inadequate in light of Renner’s admissions. The trial court 

denied the motion for new trial, and Lewison appeals. Finding 

no error, we affirm.

I. FACTS

On December 21, 2012, in Kearney, Nebraska, Renner made 

a left turn in front of a vehicle being driven by Lewison and 

the two vehicles collided. Lewison was taken from the scene 

by ambulance and treated in the emergency room for complaints of neck and back pain.

In 2014, Lewison filed a negligence action against Renner 

in Buffalo County District Court. She alleged the collision 

caused injuries to her neck, back, and wrists. She further 

alleged that because of those injuries, she incurred medical 

expenses of $53,270 and experienced mental and physical pain 

and suffering.

Renner’s operative answer admitted her negligence was 

the proximate cause of the collision with Lewison and further admitted “the collision was the cause of some injury to 

[Lewison].” But Renner “specifically denie[d] the nature and 

extent of the damage and injury claimed by [Lewison].”

1. Evidence Presented a

The case was tried to a jury. Lewison testified at trial, 

but recalled very few details of her medical history and was 

generally a poor historian. Most of the evidence regarding 

Lewison’s medical history and treatment was provided through 

the video depositions of four medical experts. Of the four 

medical experts, three were Lewison’s treating doctors and one 

was hired by Renner as a defense expert.

The only exhibits Lewison offered at trial were the video 

depositions of her doctors and the standard life expectancy 
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table. She did not offer any evidence regarding the amount of 

her medical expenses, nor did she offer evidence of lost earnings, property damage, or other special damages. At oral argument before this court, Lewison’s attorney explained that the 

decision not to offer evidence of Lewison’s medical expenses 

was a strategic one, designed to avoid anchoring the jury to a 

formulaic approach to calculating damages.

(a) Family Doctor

Lewison’s family doctor testified that 1 week after the collision, his office treated Lewison for tightness in her neck and 

bruising. Lewison returned to the family doctor 10 days later, 

reporting moderate neck spasms. CT scans of Lewison’s head, 

neck, and thoracic spine were negative. She was referred to 

physical therapy and prescribed pain medications.

According to the family doctor, Lewison first complained 

to him about tingling in her hands on February 5, 2013, 

roughly 6 weeks after the collision. He ruled out any injuries 

related to her cervical spine and eventually diagnosed her 

with carpal tunnel syndrome and referred her to an orthopedic 

hand surgeon.

The family doctor was not asked to offer an opinion on 

whether the collision caused Lewison’s neck and wrist complaints. But he did testify that her neck complaints were 

“consistent” with the collision and that the collision “could” 

have caused her wrist pain. When asked whether “some of” 

Lewison’s medications were related to injuries suffered in the 

2012 collision, he replied, “I think sometimes yes, sometimes 

no. She has other aches and pains elsewhere. But, yes, sometimes she takes it for back pain, or neck pain, or head pain.” 

The family doctor summarized:

I would say [Lewison] is a unique individual and maybe 

doesn’t read the book as far as being a standard run-ofthe-mill patient, and that she might have aches and pains 

that sometimes are hard to figure out no matter what day 

of the week it is.
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(b) Hand Surgeon

Lewison’s family doctor referred her to an orthopedic hand 

and microvascular surgeon in Kearney. The hand surgeon first 

saw Lewison in March 2013, approximately 3 months after 

the collision. At that time, Lewison complained of numbness 

and tingling in both hands. The hand surgeon testified that 

Lewison had undergone a carpal tunnel surgery in 1992, and 

he ultimately performed additional carpal tunnel surgeries in 

2014. When asked whether the collision could have caused 

Lewison’s wrist complaints, the hand surgeon replied, “Well, 

it’s possible.” Lewison’s counsel then asked:

Q . . . [I]n this case, if we didn’t have anything other 

than the description provided by Ms. Lewison of the accident, would it be more likely than not, then, to say that 

the accident caused . . . the carpal tunnel?

A Well, you know, I — I’m not sure that I can say 

that . . . .

When asked directly “whether or not the automobile accident 

of December 21st, 2012, caused or contributed . . . in any way” 

to Lewison’s carpal tunnel, the hand surgeon replied:

Well, it — it’s possible that the injuries to her hands 

caused enough swelling around those nerves that it 

increased the pressure, and it — and, but more than likely, 

there was probably some amount of preexisting problem. 

Obviously, she had previous surgery on the right, and 

people tend to be built fairly symmetrically, and so if 

you’re going to have a — a problem with a tight tunnel 

for a nerve on one side, you’re likely to have a similar 

problem on the other, unless there was some other reason 

for it, like, for example, an old fracture or something 

that changed the architecture of that tunnel. So if somebody has idiopathic carpal tunnel on one side, you would 

expect sometime within . . . the next several years they’ll 

probably develop[] similar symptoms in the other. It’s not 

100 percent, but it’s pretty common.
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(c) Pain Specialist

Eleven months after the collision, Lewison visited a pain 

specialist in Kearney for back pain. The pain specialist testified that Lewison had an extensive history of back problems, 

including: a back surgery when she was 19; a lumbar diskectomy and fusion surgery in 1989; and a series of nerve ablation (or rhizotomy) surgeries, the most recent of which was in 

2011. With respect to the cause of Lewison’s recent back pain, 

the pain specialist said “it’s hard for me to help out on that.” 

Lewison’s counsel asked:

Q So — so obviously, the car accident didn’t cause 

her back problems. The question I guess we have here 

is did it aggravate the preexisting back problems that 

she had?

A Yeah, so it’s tough for me to, you know, give a 

definitive statement on that, and — and I, you know, I — 

definitely, it could have; but can anyone say, would she 

still have wound up needing the procedure I ultimately 

did, which is spinal cord stimulator implant, that’s tough 

for me to say whether . . . her disease progression was 

going to keep going, whether — the way it was, and 

develop into this with or without the car accident. I think 

it would have been easier to say the car accident precipitated it if within that first month afterwards we were 

dealing with excruciating back pain; but for me, like you 

said, I was 11 months out, basically . . .

Q Right, right.

A . . . before I saw her.

(d) Defense Expert

A neurologist was hired by Renner to examine Lewison 

and review her medical records. He testified that Lewison had 

a long history of neck, back, and wrist pain before the collision. But he also testified that Lewison “may well have had a 

temporary sprain or strain, but any persisting pain after four 

to six weeks was not caused by the accident.” He ultimately 
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testified that the medical treatment Lewison received “from the 

emergency room and for four to six weeks or so after that was 

both appropriate and reasonably caused by the — necessitated 

by the accident.” This expert did not testify about the cost of 

such treatment, and no bills for this period of treatment, or any 

other, were offered.

2. Jury Instructions and 

Regarding Renner’s admissions, the court instructed the jury:

[Renner] admits that she was negligent in the operating of a motor vehicle and that her negligence was the 

proximate cause of some injury to [Lewison]. [Renner] 

denies the nature and extent of [Lewison’s] injury and 

damages.

Based upon this admission[,] the Court had found as 

a matter of law that [Renner] was negligent and her negligence was a proximate cause of the accident and you 

must accept those findings as true.

The court then instructed the jury that, in light of Renner’s 

admissions, Lewison had the following burden of proof:

B. BURDEN OF PROOF

Before [Lewison] can recover against [Renner], 

[Lewison] must prove, by the greater weight of the evidence[,] the nature and extent of her damages proximately 

caused by [Renner’s] negligence.

C. EFFECT OF FINDINGS

If [Lewison] has not met this burden of proof, then 

your verdict must be for [Renner].

On the other hand, if [Lewison] has met this burden of 

proof, then your verdict must be for [Lewison].

Regarding recoverable damages, the jury was instructed:

If you return a verdict for [Lewison], then you must 

decide how much money will fairly compensate [Lewison] 

for her injury.

I am about to give you a list of the things you may 

consider in making this decision. From this list, you must 
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only consider those things you decide were proximately 

caused by [Renner’s] negligence:

1. The nature and extent of the injury, including whether 

the injury is temporary or permanent (and whether any 

resulting disability is partial or total);

2. The reasonable value of the medical (hospital, nursing, and similar) care and supplies reasonably needed by 

and actually provided to [Lewison] (and reasonably certain to be needed and provided in the future);

3. The physical pain and mental suffering [Lewison] 

has experienced (and is reasonably certain to experience 

in the future)[.]

The jury was given the standard preexisting injury instruction 

found in NJI2d Civ. 4.09.

The jury was also given two verdict forms: one finding in 

favor of Lewison with a line for the amount of damages, and 

the other finding in favor of Renner. No party objected to the 

jury instructions or the verdict forms, and no error is assigned 

to them on appeal.

During deliberations, the jurors sent a written question asking, in part, “What bills have been paid for so far?” After consulting with counsel, the court replied, “You have received all 

the evidence that has been presented. Keep deliberating.” After 

further deliberations, the jury returned a unanimous verdict 

for Renner.

3. Motion for New 

Lewison timely moved for a new trial claiming, among 

other things, that the jury’s verdict was “inadequate” in light 

of Renner’s admissions and was not sustained by sufficient 

evidence. Specifically, Lewison argued that because Renner 

had admitted her negligence proximately caused “some injury” 

to Lewison, the jury had to return a verdict for Lewison, even 

if they found minimal damages. Renner disagreed. She argued 

that by admitting the collision caused “some injury” but specifically denying the nature and extent of Lewison’s claimed 
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injuries and damages, Lewison retained both the burden to 

prove which injuries were proximately caused by the accident 

and the burden to prove the nature and extent of her damages. 

Renner argued that Lewison failed to carry her burden of proof 

and that the jury properly returned a defense verdict.

The district court denied Lewison’s motion for new trial 

and entered judgment on the jury’s verdict. Lewison timely 

appealed, and we moved the case to our docket on our 

own motion.1

II. ASSIGNMENT OF ERROR

Lewison assigns, restated, that the trial court erred in overruling her motion for new trial because the jury’s verdict was 

inadequate in light of Renner’s judicial admissions.

III. STANDARD OF REVIEW

[1] An appellate court reviews a denial of a motion for new 

trial for an abuse of discretion.2 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.3

IV. ANALYSIS

Lewison argues she is entitled to a new trial, because the 

jury’s verdict was not sustained by sufficient evidence or was 

contrary to law.4 She contends “[t]here is no explanation for a 

[defense] verdict . . . ,”5 given that Renner admitted the collision was caused by her negligence, and also admitted the 

collision caused Lewison “some injury.”

1 See Neb. Rev. Stat. § 24-1106 (Reissue 2016). 

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

3 Id.

4 See Neb. Rev. Stat. § 25-1142(6) (Reissue 2016).

5 Brief for appellant at 8.
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To determine whether the trial court abused its discretion 

in denying Lewison’s motion for new trial, we first set out 

Lewison’s burden of proof in this negligence action.6 Next, 

we consider how Renner’s admissions affected that burden 

of proof. And finally, we consider the evidence adduced at 

trial to determine whether the jury’s verdict was supported by 

the evidence.

1. Burden of Pr

Negligence 

[2,3] To prevail in any negligence action, a plaintiff must 

show a legal duty owed by the defendant to the plaintiff, a 

breach of such duty, causation, and resulting damages.7 More 

specifically, in an automobile negligence action, a plaintiff must prove each of the following elements: (1) that the 

defendant was negligent in one or more of the ways alleged, 

(2) that this negligence was a proximate cause of the collision, (3) that the collision was a proximate cause of some 

damage to the plaintiff, and (4) the nature and extent of 

that damage.8

[4-6] When the character of an alleged injury is subjective rather than objective, a plaintiff must establish the cause 

and extent of the injury through expert medical testimony.9

Although expert medical testimony need not be couched in 

the magic words “reasonable medical certainty” or “reasonable 

probability,” it must be sufficient as examined in its entirety 

to establish the crucial causal link between the plaintiff’s 

injuries and the defendant’s negligence.10 We have explained 

that “[m]edical expert testimony regarding causation based 

upon possibility or speculation is insufficient; it must be 

6 See Macke v. Pierce, 266 Neb. 9, 661 N.W.2d 313 (2003).

7 Latzel v. Bartek, 288 Neb. 1, 846 N.W.2d 153 (2014).

8 See, e.g., NJI2d Civ. 2.01.

9 See Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999).

10 Id.
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stated as being at least ‘probable,’ in other words, more likely 

than not.”11

2. Impact of Admissi

Burden of 

[7-11] “‘It is an elementary rule of pleading that matters 

admitted by the pleadings need not be proved.’”12 Generally, 

an admission made in a pleading on which the trial is had is 

more than an ordinary admission, it is a judicial admission.13 A 

judicial admission is a formal act done in the course of judicial 

proceedings which is a substitute for evidence, thereby waiving or dispensing with the production of evidence by conceding for the purpose of litigation that the proposition of fact 

alleged by the opponent is true.14 It is important to consider 

the context in which a judicial admission is made.15 A judicial admission does not extend beyond the intendment of the 

admission as clearly disclosed by its context.16

(a) Admission of Negligence and 

Proximate Cause of Collision

In this case, Renner’s answer admitted she was negligent 

in operating her vehicle and admitted her negligence was the 

proximate cause of the collision with Lewison. Based on those 

unconditional admissions, the trial court correctly found, as a 

matter of law, that Renner was negligent and that her negligence proximately caused the collision. The jury was instructed 

11 Id. at 975, 587 N.W.2d at 894, citing Berggren v. Grand Island Accessories, 

249 Neb. 789, 545 N.W.2d 727 (1996).

12 Lange Building & Farm Supply, Inc. v. Open Circle “R”, Inc., 210 Neb. 

201, 205, 313 N.W.2d 645, 648 (1981), quoting Peitz v. Hausman, 198 

Neb. 344, 252 N.W.2d 628 (1977).

13 Lange Building & Farm Supply, Inc., supra note 12.

14 See In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017).

15 City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 

(2006).

16 In re Estate of Radford, supra note 14.
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to accept those findings as true. As such, Renner’s judicial 

admissions effectively relieved Lewison of her burden to prove 

the first two elements of her negligence action.17

(b) Admission of “[S]ome [I]njury”

Lewison alleged that as a result of the collision, she “sustained injuries to her wrists, neck, and back.” Renner’s answer 

admitted the collision was the cause of “some injury” to 

Lewison, but specifically denied “the nature and extent of the 

damage and injury claimed” by Lewison.

We considered a similar admission in Springer v. Smith.

18 In 

that case, the defendant filed an answer admitting the collision 

was proximately caused by his negligence and further admitting the plaintiff “suffered some injury” in the collision, but 

specifically denying that the injuries were “of the nature and 

extent alleged” by the plaintiff.19 We began our analysis by 

observing that under such a scenario, the proximate cause of 

the plaintiff’s alleged damages remained a controverted issue, 

because the defendant had “disputed the claimed injuries in his 

pleadings and at the trial.”20 We observed that “[a]n admission 

of liability for an accident does not constitute an admission that 

all damages claimed by a plaintiff, even though undisputed in 

the record, were the proximate result of the collision.”21 And 

given the nature of the defendant’s admissions in Springer, we 

reasoned it was proper for the trial court to instruct the jury 

that before the plaintiff could recover against the defendant, 

the plaintiff had the burden to prove, by a preponderance of 

17 See Dolberg v. Paltani, 250 Neb. 297, 549 N.W.2d 635 (1996) (finding 

negligence as matter of law equates to finding plaintiff established first 

two of four negligence elements, but issues of causation and damages 

remain for jury’s determination).

18 Springer v. Smith, 182 Neb. 107, 153 N.W.2d 300 (1967).

19 Id. at 108, 153 N.W.2d at 301.

20 Id. at 110, 153 N.W.2d at 302.

21 Id.
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the evidence, that “as a proximate result of the accident . . . the 

plaintiff sustained injuries and damages; and . . . [t]he extent of 

the damages, if any, which the plaintiff has sustained.”22

[12] Springer illustrates that when a defendant admits the 

collision caused “some injury” but expressly denies the nature 

and extent of the injuries and damages claimed, it is improper 

to construe the admission as conceding the collision caused all 

of the injuries claimed by the plaintiff.23

Here, Renner admitted “some injury” but expressly denied 

that Lewison’s injuries, or her damages, were of the nature 

or extent claimed by Lewison. The record does not suggest 

Renner was ever asked to specify what she intended by “some 

injury.” But considering Renner’s judicial admission in context, we conclude it did not relieve Lewison of her burden to 

prove both that her claimed injuries and damages were proximately caused by the collision and the nature and extent of 

her damages. In other words, the cause of Lewison’s claimed 

injuries, as well as the nature and extent of her injuries and 

damages, were controverted by Renner. Lewison’s arguments 

to the contrary lack merit.

3. Jury’s Verdict 

Supported by Evid

[13] In determining the sufficiency of the evidence to sustain 

a verdict, the evidence must be considered most favorably to 

the successful party, every controverted fact must be resolved 

in the successful party’s favor, and the successful party is 

entitled to the benefit of any inferences reasonably deducible 

from the evidence.24

[14] Here, the jury returned a general verdict for Renner. 

When the jury returns a general verdict for one party, a 

22 Id.

23 Accord Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (2015).

24 Holman v. Papio-Missouri River Nat. Resources Dist., 246 Neb. 787, 523 

N.W.2d 510 (1994).
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court presumes that the jury found for the successful party 

on all issues raised by that party and presented to the jury.25

Consequently, we must treat the jury’s verdict as having found 

that Lewison failed to meet her burden of proof on both of the 

contested issues: (1) whether the collision was the proximate 

cause of any injury or damage to Lewison and (2) the nature 

and extent of that damage.

We pause briefly to observe that the burden of proof instruction given in this case effectively combined the two controverted elements (proximate cause and nature/extent of the damages) into a single statement by instructing that Lewison had 

to prove “the nature and extent of her damages proximately 

caused by [Renner’s] negligence.” While the better practice is 

to separate out for the jury each element of a party’s burden of 

proof, no one objected to combining these elements in the jury 

instructions, and no error has been assigned to the instructions 

on appeal.

On this record, considering the evidence most favorably to 

the successful party, we can find no abuse of discretion in the 

trial court’s conclusion that the jury’s verdict was supported 

by the evidence. Lewison’s neck, back, and wrist complaints 

were subjective in nature and, as such, the cause and the 

nature/extent of such injuries had to be proved through expert 

medical testimony.26 At trial, her treating doctors’ opinions on 

causation were equivocal and were couched in terms of possibilities, rather than probabilities. Lewison does not attempt 

to argue otherwise on appeal, and instead, she relies exclusively on the opinion of the defense expert who testified that 

the medical treatment Lewison received “from the emergency 

room and for four to six weeks or so after that was both appropriate and reasonably caused by the — necessitated by the 

accident.” Lewison argues that in light of this testimony, the 

25 Balames v. Ginn, 290 Neb. 682, 861 N.W.2d 684 (2015).

26 See Doe v. Zedek, supra note 9.
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jury had no choice but to return a verdict in Lewison’s favor. 

We disagree.

[15] Triers of fact are not required to take opinions of 

experts as binding upon them, and determining the weight 

to be given expert testimony is uniquely the province of the 

fact finder.27 Here, the jury reasonably could have given more 

weight to Lewison’s own doctors than to the defense expert, 

and therefore concluded Lewison had failed to meet her burden 

of proof on causation. And even if the jury did give weight to 

the defense expert’s testimony, it reasonably could have concluded Lewison failed to meet her burden of proof regarding 

the nature and extent of her damages, because the record contains no evidence from which the jury could determine the cost 

of Lewison’s medical treatment during the 4- to 6-week period 

after the collision.

The record amply supports the conclusion that Lewison 

failed to meet her burden of proof regarding one or both of the 

contested issues: the cause of her injuries and the nature and 

extent of her damages. The trial court did not abuse its discretion in overruling Lewison’s motion for new trial.

V. CONCLUSION

For the foregoing reasons, we affirm the district court’s 

denial of Lewison’s motion for new trial.

Affirm

Wright, J., not participating

27 Vredeveld v. Clark, 244 Neb. 46, 504 N.W.2d 292 (1993).