Anderson v. Babbe , 304 Neb. 186 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/29/2019 12:09 AM CST
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    ANDERSON v. BABBE
    Cite as 
    304 Neb. 186
    R ickey A nderson and Lynnette A nderson,
    appellees, v. Gregory J. Babbe,
    M.D., et al., appellants.
    ___ 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 instruc-
    tion 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 rul-
    ing on a motion for directed verdict, an appellate court must treat the
    motion as an admission of the truth of all competent evidence submit-
    ted 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 them-
    selves 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 favor-
    ably 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
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    overruled and the defendant introduces evidence in support of allega-
    tions 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 intro-
    duces it.
    Appeal from the District Court for Douglas County: Duane
    C. Dougherty, Judge. Affirmed.
    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, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    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
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    patient’s case by presenting evidence, and evidence subse-
    quently adduced established a breach of the standard of care.
    We affirm.
    II. BACKGROUND
    1. Pleadings
    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 treat-
    ment 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 ordi-
    narily possessed by like physicians, under like circumstances,
    in Omaha.
    2. Voir Dire
    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 prospec-
    tive jurors discussed the importance of mobility. The doctors
    moved for a mistrial, but the court overruled the motion. It
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    also declined to give an admonishment or curative instruction
    at that time.
    3. Evidence at Trial
    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 rota-
    tion 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 physi-
    cians 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 chemi-
    cal 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
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    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 mal-
    practice, 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 doc-
    tors noted that the family physician was never asked if he was
    familiar with the standard of care expected of family practice
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    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 tes-
    tify 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 con-
    sultation 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
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    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 testi-
    fied 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. Verdict
    The jury found that the Andersons met their burden of proof
    against each doctor. The jury allocated 75 percent of the liabil-
    ity to Babbe and UNMC Physicians and 25 percent to Backer
    and UNMC Physicians. The jury determined Anderson’s eco-
    nomic 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 selec-
    tion. They allege the court erred in (1) failing to grant a
    1
    See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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    mistrial, (2) failing to give a curative instruction, and (3) over-
    ruling 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.
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    and to have the benefit of every inference which can reason-
    ably be deduced from the evidence.6
    V. ANALYSIS
    1. Golden Rule Discussion in Voir Dire
    (a) Additional Facts
    During voir dire, the Andersons’ counsel informed the pro-
    spective jurors that they “are to look at the evidence objec-
    tively 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 physi-
    cal 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 prob-
    ably 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 [pro-
    spective] 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 pro-
    spective 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).
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    a quality-of-life aspect, but, yeah, being able to support your-
    self and your family.” A seventh similarly stated that mobility
    is very important.
    Immediately after the seventh’s response, the court sug-
    gested 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’ coun-
    sel] 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 mobil-
    ity? [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 clos-
    ing.” 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 objec-
    tion.” 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.
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    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 some-
    thing 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 dam-
    ages. 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 some-
    thing 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.
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    (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 indoc-
    trinate jurors to react favorably to a party’s position when
    presented with particular evidence.11 In one case, a prosecu-
    tor 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).
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    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.
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    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 specifi-
    cally 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 prospec-
    tive 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 pro-
    spective 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 unde-
    veloped. 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 instruc-
    tions 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 influ-
    ence you.” Once the jury had heard all of the evidence, it was
    instructed, “You must not allow sympathy or prejudice to influ-
    ence 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
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    conclude that the court did not abuse its discretion in overrul-
    ing the doctors’ motion for new trial.
    2. Motion for Directed Verdict A fter
    A ndersons’ Case in Chief
    [8] The doctors argue that the district court erred in overrul-
    ing 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 plain-
    tiff 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.
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    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 defend­
    ant 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 appel-
    lee’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 R egarding
    Standard of Care
    The doctors argue that the court erred in allowing question-
    ing 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).
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    They contend that Backer was not identified as an expert wit-
    ness 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 inter-
    rogatory 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 testify-
    ing 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 Verdict
    A fter Close of A ll Evidence
    [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.
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    [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 estab-
    lish 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 treat-
    ing 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.
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    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 fol-
    lowing 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 cross-
    examination 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.
    A ffirmed.