- 186 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

Rickey Anderson and Lynnette

appellees, v. Gregory J. Bab

M.D., et al., appel

___ N.W.2d ___

Filed October 4, 2019. No. S-18-847.

1. Motions for Mistrial: Appeal and Error. Decisions regarding motions 

for mistrial are directed to the discretion of the trial court and will be 

upheld in the absence of an abuse of discretion.

2. Jury Instructions. The giving or refusing to give a cautionary instruction that the jury is not to allow sympathy or prejudice to control or 

affect its finding is within the discretion of the trial court.

3. Motions for New Trial: Appeal and Error. An appellate court reviews 

a denial of a motion for new trial for an abuse of discretion.

4. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a motion for directed verdict, an appellate court must treat the 

motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such 

being the case, the party against whom the motion is directed is entitled 

to have every controverted fact resolved in its favor and to have the 

benefit of every inference which can reasonably be deduced from 

the evidence.

5. Jurors: Damages. A “Golden Rule” argument tells the jurors to place 

themselves in the plaintiff’s shoes and award the amount they would 

“charge” to undergo equivalent disability, pain, and suffering.

6. Jurors: Appeal and Error. Although an invitation to jurors to put themselves in the place of a party is improper argument, it is not a ground for 

a reversal unless the jurors were prejudicially affected by the remark.

7. Juror Qualifications. Parties may not use voir dire to impanel a jury 

with a predetermined disposition or to indoctrinate jurors to react favorably to a party’s position when presented with particular evidence.

8. Directed Verdict: Waiver: Appeal and Error. When a defendant’s 

motion for directed verdict made at the close of plaintiff’s case is 

Nebraska Supreme Court Online Library

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

12/27/2019 12:06 AM CST
- 187 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

overruled and the defendant introduces evidence in support of allegations contained in its answer, the defendant waives any right to insist 

that the court erred in overruling the motion.

9. Directed Verdict: Appeal and Error. A directed verdict is proper at the 

close of all the evidence only when reasonable minds cannot differ and 

can draw but one conclusion from the evidence, that is, when an issue 

should be decided as a matter of law.

10. Physicians and Surgeons: Expert Witnesses: Proof. To establish the 

customary standard of care in a particular case, expert testimony by a 

qualified medical professional is normally required.

11. Directed Verdict: Evidence. A defendant, by introducing evidence after 

his or her motion for a directed verdict is denied, takes the chance that 

his or her evidence will aid the plaintiff’s case.

12. Evidence. A plaintiff has a right to have the submission of his or her 

case determined from all of the evidence regardless of who introduces it.

Appeal from the District Court for Douglas County: Dua

C. Dougherty, Judge. Affirme

Mary M. Schott and Joseph S. Daly, of Sodoro, Daly & 

Shomaker, P.C., L.L.O., for appellants.

Patrick J. Cullan and Joseph P. Cullan, of Cullan & Cullan, 

L.L.C., for appellees.

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

Papik, and Freudenberg, 

Cassel, J

I. INTRODUCTION

A patient sued his doctors and obtained a favorable jury 

verdict. The doctors contend that (1) an improper “Golden 

Rule” discussion occurred during voir dire and (2) the patient 

failed to establish a breach of the standard of care. Because the 

voir dire discussion did not rise to a Golden Rule exhortation, 

the court did not abuse its discretion in denying requests for 

a mistrial, curative instruction, and new trial. The court did 

not err in denying the doctors’ motions for directed verdict: 

The doctors waived any error in the denial at the close of the 
- 188 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

patient’s case by presenting evidence, and evidence subsequently adduced established a breach of the standard of care. 

We affirm.

II. BACKGROUND

1. Plead

Elisabeth L. Backer, M.D., and Gregory J. Babbe, M.D., 

practiced medicine in Omaha, Nebraska. They were employees 

of UNMC Physicians.

In November 2012, Backer and Babbe provided medical care 

and treatment to Rickey Anderson. On November 1, Backer 

saw Anderson for a red, swollen, right lower extremity. On 

November 6, Anderson was admitted to the Nebraska Medical 

Center. While hospitalized, he was under the care and treatment of Babbe. Anderson was discharged on November 10, and 

Backer thereafter continued to provide medical care regarding 

his right lower extremity. Neither Backer nor Babbe performed 

an x ray of Anderson’s right lower extremity. Neither doctor 

reevaluated the diagnosis of cellulitis.

In January 2013, Anderson consulted with a podiatrist and 

was told that he had “Charcot foot.” He was informed that if 

x rays had been taken in November 2012, the deformity would 

have been revealed and significant deterioration of his foot 

could have been prevented.

Anderson and his wife sued Backer, Babbe, and UNMC 

Physicians (collectively the doctors) for medical malpractice 

and loss of consortium. The doctors affirmatively alleged that 

they acted with the degree of care, skill, and knowledge ordinarily possessed by like physicians, under like circumstances, 

in Omaha.

2. Voir Di

The matter proceeded to a jury trial. As we set forth in 

more detail in our analysis, the Andersons’ counsel wished to 

talk with the venire about physical health and several prospective jurors discussed the importance of mobility. The doctors 

moved for a mistrial, but the court overruled the motion. It 
- 189 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

also declined to give an admonishment or curative instruction 

at that time.

3. Evidence at 

The Andersons called two expert witnesses to testify during 

their case in chief. One was a podiatrist who treated Anderson 

and practiced in the Omaha area. Other than a 2-month rotation in residency, the podiatrist had never practiced family 

medicine. But the podiatrist was an adjunct clinical instructor 

who worked with residents from the University of Nebraska 

Medical Center during an elective rotation, and based on that, 

he was familiar with the material that family practice physicians training at the University of Nebraska Medical Center 

were to know with respect to foot care. The other expert was 

a family physician who was chairman of a community hospital 

in Baltimore, Maryland.

The podiatrist saw Anderson following a referral by Backer 

to the podiatrist’s partner. The referral was for cellulitis and 

the removal of a toenail. The podiatrist opined that had the 

Charcot foot been diagnosed and treated appropriately on 

or prior to November 28, 2012, Anderson would not have 

suffered damage to his foot. The podiatrist explained how 

Charcot occurs in a patient with neuropathy: an event causes 

bones to release an osteoclast, the osteoclast releases a chemical that causes inflammation and redness, and “as the event 

occurs, you have two months to get it set up, immobilize it, 

[and] protect the foot.” According to the podiatrist, if the foot 

is immobilized and the inflammation is allowed to resolve, 

the foot generally will not have a deformity. Having reviewed 

Anderson’s records, the podiatrist testified that Anderson 

should have been immobilized and placed into a protective 

boot on November 1.

The podiatrist testified that based on an algorithm compiled 

by an international task force on Charcot foot, obtaining an 

x ray is the first thing that should be done if there is a clinical 

suspicion of a Charcot event. No x ray was taken until January 

22, 2013. When asked if he had an opinion as to whether 
- 190 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

the care Anderson received was malpractice, the podiatrist 

answered: “My opinion is it was a missed diagnosed Charcot 

and it was a mistake. So, unfortunately, that means it’s malpractice, that we made a mistake and now there’s damages 

that occurred because of our mistakes.”

The family physician conducted a forensic review of the 

case. He explained that Anderson had a neuropathy, which put 

him at increased risk for developing a Charcot joint. Although 

Anderson presented himself with what may have “looked like 

a cellulitis,” it did not “behave like a cellulitis.” The family 

physician testified that “in a patient with neuropathy, who had 

these kinds of symptoms, I believe that [the doctors] needed 

to think about the possibility of a Charcot joint.” He testified 

that it was unreasonable to not perform any x ray or MRI on 

Anderson on November 1, 2012, or thereafter. The following 

colloquy occurred between the Andersons’ counsel and the 

family physician:

Q. And do you have an opinion whether or not each and 

every one of the opinions you’ve proffered with respect to 

the violations of the standard of care independently was 

a — was a proximate cause of . . . Anderson’s injuries?

A. Yes.

Q. So the failure to consider Charcot on each and every 

day was a cause of . . . Anderson’s condition?

A. I believe so, yes.

Q. Well, alternatively, had they considered Charcot at 

any time in November, do you have an opinion whether 

or not we’d be here today, that he would have suffered the 

fractures, dislocations and subluxations that he did?

A. From what I know about Charcot, if it’s treated at 

Stage 0, it has an excellent prognosis.

After the Andersons rested, the doctors moved for a directed 

verdict. They asserted that neither of the Andersons’ expert 

witnesses mentioned the words “‘standard of care.’” The doctors noted that the family physician was never asked if he was 

familiar with the standard of care expected of family practice 
- 191 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

physicians in Omaha, that the podiatrist was not asked if he 

knew what the standard of care was, and that neither expert 

testified that a breach of the standard of care occurred.

The court similarly did not recall hearing “the usual question 

point-blank.” But the court remarked that the “substance of the 

testimony is really more important than the choice of words.” 

The court overruled the motion for a directed verdict.

During the doctors’ case in chief, the Andersons’ counsel 

cross-examined Backer about the standard of care. Backer 

agreed that if a patient with neuropathy has symptoms wholly 

consistent with Charcot foot and if nothing is inconsistent with 

that condition, then the standard of care requires a physician to 

suspect Charcot foot. Backer recalled Babbe’s testimony that 

Anderson’s condition was wholly consistent with Charcot foot, 

that nothing was inconsistent with Charcot foot on November 

6, 2012, and that Babbe did not consider Charcot foot. The 

Andersons’ counsel then asked Backer, “Do you agree, based 

on that evidence, that . . . Babbe violated the standard of 

care?” The doctors’ counsel objected, explaining that Backer 

had not been identified as an expert witness to testify as to 

anybody but herself. The Andersons’ counsel directed the court 

to the doctors’ third supplemental answers to interrogatories 

in which they designated their expert witnesses as “Dr. Frey” 

along with Babbe and Backer and stated that “they” would testify that “they” met the standard of care. The court overruled 

the objection.

Backer testified that when there is a clinical suspicion of 

Charcot foot, the standard of care required a specialty consultation with either an orthopedist or a podiatrist. Backer 

testified that based upon Babbe’s testimony, he failed to meet 

the standard of care because he did not get any such specialty 

consultation. During questioning, Backer agreed that she was 

designated as an expert to defend the conduct of herself 

and Babbe.

Prior to seeing Anderson, Babbe spoke with Backer, who 

informed Babbe that Anderson had a foot infection that was 
- 192 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

not improving. Babbe first saw Anderson on November 6, 

2012. He diagnosed Anderson with cellulitis, and his diagnosis 

never changed. Babbe agreed that Anderson met the diagnostic 

criteria for Charcot foot every time Babbe saw him, and Babbe 

testified that he never ruled out Charcot foot. But Babbe testified that Anderson also had more swelling and redness up into 

his calf and responded to antibiotic treatment. According to 

Babbe, antibiotics will have no effect on redness caused by 

Charcot foot. Further, Babbe conducted a physical examination 

of Anderson’s right foot and ankle on each of the 4 days that 

Babbe saw him and he never noted any abnormalities to the 

structure of the foot or ankle. Babbe testified that he was not 

negligent and did not commit malpractice.

At the close of all evidence, the doctors renewed their 

motion for directed verdict. The court denied the motion.

4. Verdi

The jury found that the Andersons met their burden of proof 

against each doctor. The jury allocated 75 percent of the liability to Babbe and UNMC Physicians and 25 percent to Backer 

and UNMC Physicians. The jury determined Anderson’s economic damages to be $100,000 and his noneconomic damages 

to be $500,000. The jury decided Anderson’s wife’s loss of 

consortium damages amounted to $200,000. The court entered 

judgment on the verdict for the Andersons in the amount 

of $800,000.

The doctors filed a motion for new trial or, alternatively, 

for judgment notwithstanding the verdict. The court denied the 

motion. The doctors filed a timely appeal, which we moved to 

our docket.1

III. ASSIGNMENTS OF ERROR

The doctors assign three errors with respect to jury selection. They allege the court erred in (1) failing to grant a 

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
- 193 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

mistrial, (2) failing to give a curative instruction, and (3) overruling their motion for new trial.

The doctors also assign three errors related to the alleged 

failure of the Andersons to establish a breach of the standard 

of care. They claim that the court erred in (1) failing to grant 

their motion for directed verdict at the close of the Andersons’ 

case in chief, (2) allowing questioning of Backer about the 

standard of care of Babbe, and (3) failing to grant their motion 

for directed verdict at the close of all evidence.

To be considered by an appellate court, an alleged error 

must be both specifically assigned and specifically argued 

in the brief of the party asserting the error.2 The doctors did 

not specifically assign that the court erred in overruling their 

motion for judgment notwithstanding the verdict; thus, we do 

not address any argument concerning that motion.

IV. STANDARD OF REVIEW

[1] Decisions regarding motions for mistrial are directed 

to the discretion of the trial court and will be upheld in the 

absence of an abuse of discretion.3

[2] The giving or refusing to give a cautionary instruction 

that the jury is not to allow sympathy or prejudice to control 

or affect its finding is within the discretion of the trial court.4

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

trial for an abuse of discretion.5

[4] In reviewing a trial court’s ruling on a motion for 

directed verdict, an appellate court must treat the motion as an 

admission of the truth of all competent evidence submitted on 

behalf of the party against whom the motion is directed; such 

being the case, the party against whom the motion is directed 

is entitled to have every controverted fact resolved in its favor 

2 Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 (2019).

3 Bank v. Mickels, 302 Neb. 1009, 926 N.W.2d 97 (2019).

4 See Buhrman v. Smollen, 164 Neb. 655, 83 N.W.2d 386 (1957).

5 See Bank v. Mickels, supra note 3.
- 194 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

and to have the benefit of every inference which can reasonably be deduced from the evidence.6

V. ANALYSIS

1. Golden Rule Discussion in

(a) Additional Facts

During voir dire, the Andersons’ counsel informed the prospective jurors that they “are to look at the evidence objectively and weigh the evidence objectively.” Counsel advised 

that “there’s no sympathy that’s to be allowed to enter into 

your deliberations or your thought process.”

The Andersons’ counsel wished to speak with the venire 

about physical health. He stated:

Now I just want to talk about how important your physical health is to you, your ability to walk, your ability to 

climb stairs, your ability to do things of that nature, and 

I’ll just go through each and every one of you and probably break here in a minute for — for the noon break.

At that point, counsel for the doctors objected. He asserted that 

the Andersons’ counsel was improperly “trying to put the [prospective] jurors in the position of a party.” The court overruled 

the objection.

Several prospective jurors then spoke of the importance 

of mobility. One said it “would be a hit for sure” if he were 

unable to “[r]un around like a chicken with my head cut 

off making people drunk.” Another prospective juror stated 

that her health was very important and that she “would want 

to be able to keep working, moving, and walking, being 

mobile.” A third prospective juror explained how his life 

would change if he were unable to work. A fourth discussed 

that it “would change a lot about [her] lifestyle.” A fifth prospective juror stated that he is “constantly walking around.” 

A sixth stated that mobility is “very important, not just from 

6 Smith v. Meyring Cattle Co., 302 Neb. 116, 921 N.W.2d 820 (2019).
- 195 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

a quality-of-life aspect, but, yeah, being able to support yourself and your family.” A seventh similarly stated that mobility 

is very important.

Immediately after the seventh’s response, the court suggested a break for lunch and excused the prospective jurors. 

The record shows that at 11:55 a.m., in the presence of counsel 

and the parties but outside the presence of the prospective jury, 

the court addressed the objection made during voir dire. The 

court stated:

[J]ust about five minutes ago or so, [the doctors’ counsel] made an objection to [the Andersons’ counsel’s] last 

inquiry of a general question of each, which turned into 

a question of each of the jurors is how [the Andersons’ 

counsel] was handling it. We got about five or six of them 

done before we broke for lunch, where the question was: 

How important is your general health? Which then got to 

a question of one of them: How important is your mobility? [The doctors’ counsel] objected. The Court made its 

ruling and basically overruled that objection.

Now that the Court’s thought about it a little more . . . , 

the Court’s going to change that ruling, and I’m going 

to sustain [the doctors’] objection and not allow that 

question to be asked, when we return, of the remaining 

jurors. Okay?

The court explained its initial belief that the prospective 

jurors would merely confirm that their health is important. 

But the court recognized that “the answers were starting to 

get . . . towards how they would feel to . . . be in the shoes 

of [Anderson], which we don’t allow to be argued at closing.” The court stated that “it’s probably best I don’t allow 

it to even be discussed in a voir dire.” The doctors’ counsel 

confirmed “that was my whole point when I made the objection.” He asserted that the Andersons’ counsel was “arguing 

the case” and had put the prospective jurors in the place 

of Anderson. The doctors moved for a mistrial, which the 

court overruled.
- 196 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

The court stated that it would “keep an open mind” about 

giving “a limiting instruction if [counsel] felt, at the end of this 

matter . . . that needed to be discussed.” The doctors’ counsel 

asked the court “to instruct the jury and to make a comment to 

them at least” and to do so now rather than at the end of trial. 

The following colloquy occurred:

THE COURT: . . . [Y]ou want me to tell them something when they return?

[Counsel for the doctors]: Yeah, I want to tell them, 

you know, the questioning that they were asked, you 

know, that has nothing to do with how they feel. In other 

words, they can’t put themselves in the place of a party 

to a lawsuit.

THE COURT: I understand.

[Counsel for the doctors]: And have that . . . cloud their 

. . . decision on whether or not there’s any liability and, if 

so, what the damages are, if there — if there are any damages. I just think that something has to be said . . . to the 

jury. I don’t know that you could — you know, the — the 

milk has been spilled. I don’t know if you can get it back 

in the bottle or not, but —

THE COURT: Well, I’m not inclined to do that at this 

time. That’s why I did bring it up, because I thought you 

might ask for that, and I may be inclined to do it as we 

get towards the end of this trial. I’m not so sure I see 

where we’re in a worse position if I do it at the time of 

jury instructions as opposed to doing it at 1:00 when they 

return at voir dire. I don’t know what worsens during that 

time is my point.

So if you want to approach it back up and write something up you may — you may read that would —

[Counsel for the doctors]: Well, I think I just kind of 

did tell you what I thought.

THE COURT: Then I’m not going to do it at this time, 

but I certainly will entertain that motion or that thought 

later in the matter.
- 197 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

(b) Discussion

The doctors assign three errors related to voir dire. They 

argue that the court abused its discretion in overruling their 

motion for mistrial, in failing to give a curative instruction, and 

in overruling their motion for a new trial. Their arguments are 

premised upon a claim that the Andersons’ counsel improperly 

invoked the Golden Rule during voir dire. We find no merit in 

any of the respects alleged.

[5,6] “A ‘golden rule’ argument tells the jur[ors] ‘to place 

themselves in the plaintiff’s shoes and award the amount 

they would ‘charge’ to undergo equivalent disability, pain and 

suffering.’”7 Such an argument is improper because it asks the 

jurors to place themselves or their loved ones in the plaintiff’s 

position, effectively urging them to become advocates for the 

plaintiff.8 Although an invitation to jurors to put themselves in 

the place of a party is improper argument, it is not a ground 

for a reversal unless the jurors were prejudicially affected by 

the remark.9 Golden Rule cases typically involve remarks made 

during closing arguments.10

[7] Golden Rule challenges have been directed occasionally 

to remarks during voir dire. Parties may not use voir dire to 

impanel a jury with a predetermined disposition or to indoctrinate jurors to react favorably to a party’s position when 

presented with particular evidence.11 In one case, a prosecutor asked prospective jurors questions such as whether they 

thought it was “‘important to be able to feel safe and secure 

7 Janice H. v. 696 North Robertson, LLC, 1 Cal. App. 5th 586, 603, 205 Cal. 

Rptr. 3d 103, 119 (2016).

8 See id.

9 See Paro v. Farm & Ranch Fertilizer, 243 Neb. 390, 499 N.W.2d 535 

(1993).

10 See, R. Collin Mangrum, I Believe, The Golden Rule, Send a Message, 

and Other Improper Closing Arguments, 48 Creighton L. Rev. 521 (2015); 

Annot., 70 A.L.R.2d 935 (1960).

11 State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
- 198 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

in [their] own home[s]’ and ‘to defend their child[ren] from 

danger,’ and whether they had ever ‘been jealous’ or taken any 

‘sort of violent action’ out of jealousy.”12 The appellate court 

reasoned that the open-ended voir dire questions were not 

improper Golden Rule questions. In another case, the plaintiffs’ 

lawyer asked prospective jurors what they thought would be 

a fair amount of money for such a case and how they might 

feel if they lost a child.13 The court stated that the Golden 

Rule arguably did not apply because questions asked during 

voir dire are not argument, and to the extent it did apply, the 

defendants were not unfairly prejudiced.

We find persuasive a case from the District Court of Appeal 

of Florida.14 There, a prospective juror was asked whether she 

could conduct her family business without her spouse. The trial 

court initially sustained an objection to the question but denied 

a motion for mistrial. Later, the trial court granted a new trial, 

finding that the question was a Golden Rule argument. The 

appellate court disagreed. It observed that the question did not 

ask the prospective juror how much the juror would want to 

receive if placed in the plaintiffs’ position nor did it ask the 

juror to identify with the plaintiffs’ personal circumstances. 

The appellate court noted that at the time, the prospective 

jurors did not know anything about the facts of the case other 

than that the plaintiffs were suing because an accident killed 

a family member. The court reasoned that the question “asked 

what the juror’s own personal circumstances were, which is 

the very reason for voir dire—to know whether something in 

the juror’s personal experience is relevant to the issues to be 

tried in the case.”15

12 Rasheed v. State, 237 So. 3d 822, 830 (Miss. App. 2017).

13 See Heimlicher v. Steele, 615 F. Supp. 2d 884 (N.D. Iowa 2009).

14 Goutis v. Express Transport, Inc., 699 So. 2d 757 (Fla. App. 1997), 

disapproved on other grounds, Murphy v. International Robotic Systems, 

766 So. 2d 1010 (Fla. 2000).

15 Id. at 761.
- 199 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

Here, the prospective jurors were informed that this was a 

medical malpractice action. But the venire was unaware of the 

particular facts of the case. The Andersons’ counsel specifically told the prospective jurors: “[W]hat we’re not allowed to 

do right now is tell you about the facts. We’re not supposed to 

give you any information about the case itself.” The prospective jurors were not asked to place themselves in Anderson’s 

situation or asked how much they would want to be awarded if 

so placed. While the discussion during voir dire may have been 

heading in an improper direction, it did not reach the point of 

stating “put yourself in the plaintiff’s place” or asking the prospective jurors to do so. We conclude the court did not abuse 

its discretion in overruling the doctors’ motion for mistrial.

Nor did the court abuse its discretion in declining to give 

a curative instruction. The court’s apprehension about making 

the situation worse with a curative instruction during voir dire 

was reasonable. The voir dire discussion was relatively undeveloped. At that point, a trial judge could reasonably conclude 

that an admonishment or instruction would highlight the issue 

by making a vague interpretation explicit.

The court left open the possibility of giving an instruction 

“at the time of jury instructions.” There is no argument that 

a specific curative admonishment or instruction was offered 

and refused. And both the preliminary and final jury instructions given made clear that sympathy should not factor into 

the jury’s decision. Prior to the introduction of evidence, the 

jury was told, “Do not allow sympathy or prejudice to influence you.” Once the jury had heard all of the evidence, it was 

instructed, “You must not allow sympathy or prejudice to influence your verdict.” Specifically with regard to damages, the 

jury was instructed: “Remember, throughout your deliberations 

you must not engage in any speculation, guess, or conjecture, 

and you must not award any damages by way of punishment or 

through sympathy.”

For the same reasons discussed above with respect to the 

motion for mistrial and request for a curative instruction, we 
- 200 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

conclude that the court did not abuse its discretion in overruling the doctors’ motion for new trial.

2. Motion for Directed Verd

Andersons’ Case in 

[8] The doctors argue that the district court erred in overruling their motion for directed verdict made after the Andersons’ 

case in chief, but they waived any error by offering evidence. 

Over 100 years ago, this court declared that when a defendant’s 

motion for directed verdict made at the close of the plaintiff’s 

case was overruled and the defendant introduced evidence in 

support of allegations contained in its answer, it waived any 

right to insist that the court erred in overruling the motion.16

This rule enjoys continued vitality.17

The doctors assert that “deciding whether to go forward with 

the trial puts defense counsel between the proverbial rock and 

a hard place.”18 But the rule they urge would allow them to 

“have [their] cake and eat it too.” We decline their invitation to 

overrule this longstanding waiver rule.

The doctors also argue that case law indicates the first 

motion is not waived, but, rather, can be incorporated into the 

motion made at the close of all evidence. They misread the 

case law. A Missouri court cogently explained the effect of 

motions for directed verdict made at the close of the plaintiff’s 

evidence and at the close of all evidence under its rule that 

governs motions for directed verdict, which is substantially 

similar to our Neb. Rev. Stat. § 25-1315.01 (Reissue 2016):

At the close of plaintiff’s evidence, Rule 72.01(a) provides 

defendant with the opportunity to challenge whether plaintiff has made a submissible case. If no further evidence 

is introduced, the case—both at trial and on appeal—is 

16 See Bradstreet v. Grand Island Banking Co., 89 Neb. 590, 131 N.W. 956 

(1911).

17 See Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 

N.W.2d 610 (2019).

18 Reply brief for appellants at 10.
- 201 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

determined by the evidence on the record at that point. 

Should the trial court overrule the motion, defendant then 

has the choice of putting on evidence of his or her own. 

If defendant introduces evidence, the state of the record at 

the close of plaintiff’s case is waived and the case—both 

at trial and on appeal—is determined in accordance with 

all evidence admitted: plaintiff’s and defendant’s. Rule 

72.01(b) allows defendant the opportunity to move for a 

directed verdict at the close of all evidence.19

The state of the record at the close of the plaintiff’s case ceases 

to be relevant (for purposes of a directed verdict) if the defendant introduces evidence.

An Arkansas court considering a similar issue in a medical 

malpractice action found a waiver.20 In that case, the appellee 

argued that the assigned errors were immaterial, because the 

trial court should have directed a verdict for him. The appellee’s argument was premised on the plaintiff’s failure to prove 

by expert testimony that the doctor failed to meet the degree 

of skill ordinarily used by other doctors in the locality. But the 

appellate court did not reach the argument, because rather than 

standing on the motion for a directed verdict at the close of 

the plaintiff’s proof, the appellee instead introduced testimony. 

The appellate court determined that the appellee waived his 

motion by not electing to stand on it.

Because the doctors in the instant case introduced evidence 

after the court denied their motion for directed verdict at the 

close of the Andersons’ case in chief, they have waived any 

error in the ruling.

3. Questioning Re

Standard of C

The doctors argue that the court erred in allowing questioning of Backer about whether Babbe met the standard of care. 

19 Sanders v. Ahmed, 364 S.W.3d 195, 207 (Mo. 2012) (emphasis in original).

20 See Haney v. DeSandre, 286 Ark. 258, 692 S.W.2d 214 (1985).
- 202 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

They contend that Backer was not identified as an expert witness as to compliance with the standard of care for anyone 

other than herself.

In asking Backer questions about whether Babbe met the 

standard of care, the Andersons’ counsel pointed to an interrogatory answer submitted on the doctors’ behalf in which the 

doctors designated their expert witnesses as themselves and a 

third doctor. The answer stated that “they” would testify “they” 

met the standard of care. Assuming without deciding that 

the doctors’ answers to interrogatories are sufficiently in our 

record, it cannot come as a surprise for a party opponent to be 

called to testify.

The doctors direct our attention to Simon v. Drake.

21 In that 

case, we concluded that the trial court erred in permitting a 

surgeon—the plaintiff’s treating physician—who had not been 

designated as an expert to testify about standard of care issues 

and in refusing to give a curative instruction to the jury. We 

reasoned that “[c]ompared to the testimony of a hired expert, a 

juror was likely to give great weight to [the surgeon’s] opinion 

because he was [the plaintiff’s] treating physician and testifying as an expert against his own patient.”22 But here, unlike in 

Simon, Backer had been designated as an expert with regard to 

standard of care issues. We see no error.

4. Motion for Directed 

After Closeof Al

[9] The doctors also argue that their motion for directed 

verdict made at the close of all evidence should have been 

sustained. A directed verdict is proper at the close of all the 

evidence only when reasonable minds cannot differ and can 

draw but one conclusion from the evidence, that is, when an 

issue should be decided as a matter of law.23

21 Simon v. Drake, 285 Neb. 784, 829 N.W.2d 686 (2013).

22 Id. at 794, 829 N.W.2d at 693.

23 Denali Real Estate v. Denali Custom Builders, supra note 17.
- 203 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

[10] The doctors contend that the Andersons failed to 

establish the applicable standard of care, that their experts 

were familiar with the applicable standard of care, and that a 

breach of the applicable standard of care occurred. To establish the customary standard of care in a particular case, expert 

testimony by a qualified medical professional is normally 

required.24 Often, such testimony is premised on the expert’s 

personal knowledge of, and familiarity with, the customary 

practice among medical professionals in the same or similar 

locality under like circumstances.25

The doctors’ argument is based on their belief that the 

Andersons’ experts failed to state that they were familiar with 

the standard of care applicable to physicians practicing family 

medicine in Omaha in November and December 2012 treating a patient such as Anderson. In other words, they ask us to 

consider only the expert testimony presented by the Andersons 

during their case in chief.

[11,12] But on a motion made at the close of all evidence, 

our review is not limited in that way. “The defendant, by 

introducing evidence after his or her motion for a directed 

verdict is denied, takes the chance that his or her evidence 

will aid the plaintiff’s case.”26 “The plaintiff has a right to 

have the submission of his or her case determined from all of 

the evidence regardless of who introduces it.”27 The doctors’ 

evidence clearly established a violation of the standard of care. 

Accordingly, the court properly denied the doctors’ motion for 

directed verdict at the close of all evidence.

VI. CONCLUSION

We conclude that the voir dire discussion did not constitute 

a Golden Rule argument and that the court did not abuse its 

24 Hemsley v. Langdon, 299 Neb. 464, 909 N.W.2d 59 (2018).

25 Id.

26 89 C.J.S. Trial § 1353 at 770-71 (2012).

27 Id. at 771.
- 204 -

Nebraska Supreme Court Advance S

304 Nebraska Report

ANDERSON v. BABBE

Cite as 304 Neb. 186

discretion in denying the doctors’ request for a mistrial, for 

an admonishment or curative instruction during voir dire, or 

for a new trial. Because the doctors presented evidence following the denial of their motion for directed verdict at the 

close of the Andersons’ case in chief, they waived any error 

in the denial. And because the evidence—including the crossexamination of Backer—established a breach of the standard 

of care, the court did not err in denying the motion for directed 

verdict at the close of all evidence. We affirm the judgment of 

the district court.

Affirm