Saturday, March 10, 2007

Nebraska Supreme Court affirms physician's defense verdict from diabetic mother's appeal for brain injured son; criticizes the Plaintiff's abbreviated bill of exceptions and refuses to recognize plain error in alleged evidence spoliation. Worth v. Kolbeck, S-05-269, 273 Neb. 163 Plaintiff brain injured child brought suit against obstetrician because following his birth he developed hypoxicischemic encephalopathy, directly related to his diabetic mother's ketoacidosis that she experienced shortly before delivery. The child suffered lack of oxygen that caused his perinatal brain injury. Defendant doctor answered that the sole proximate cause of the plaintiff's brain injury was the mothers diabetic ketoacidosis and further that delayed cesarean delivery made no difference to the outcome. During the trial the Defendants read into evidence pediatric neurologist Stephen Glass' deposition who testified that the defendant was not negligent nor were his actions the cause of the boy's injuries. Plaintiff objected because his current attorneys were not his counsel when the defendant took this deposition. Plaintiff objected also to the trial court's instruction that allowed the jury to consider whether the mother was herself negligent in managing her pregnancy. Finally the Plaintiff urged that it was plain error for the court to fail to give a spoliation of evidence instruction, even though the Plaintiff did not provide relevant parts of the record to review this in his bill of exceptions the Supreme Court allows the Defendant's proximate cause instruction which asked the jury to consider whether the mother was a proximate cause of his injuries, even though the defendant may not impute the parents negligence to the child: " the third person’s (diabetic mother) negligence is not imputed to an innocent plaintiff by a sole proximate cause instruction. “The concept of sole proximate cause ‘rests on the notion that some third party or other independent event was the sole cause of the plaintiff’s injuries... taken as a whole, the jury instructions were sufficient to ensure that mothers’s negligence did not operate to prevent child’s recovery of damages if the jury concluded that Defendant's negligence was a concurring or contributing proximate cause of Son’s injuries. the Supreme Court went on to criticize the Plaintiff's appellate preparation, noting that The bill of exceptions does not include most of the trial. It is limited to the arguments regarding the admissibility and the reading into evidence of deposition testimony from Sonja’s medical expert, Dr. Stephen Glass; two jury instruction conferences; and the testimony of an expert document examiner, Marlin Rauscher. Finally not a good start the court denies plain error on top of admitting the deposition, stating Sonja’s argument requires a factual inquiry into this record, which is wholly insufficient for this court to evaluate whether the absence of an adverse inference instruction prejudiced Sonja’s case or led to a miscarriage of justice. It is incumbent on the party appealing to present a record which supports the errors assigned, and absent such a record, the decision of the lower court will be affirmed.36 Because we cannot determine that the court’s failure to give this instruction was error, the district court’s ruling is affirmed.

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