Nebraska Supreme Court declines to allow pain and suffering damages for intentional or negligent misrepresentation. Estate had sued nurses for misrepresenting decedent's suffering while under its hospice care. While the trial court erred when it excluded the plaintiff's expert witness who would testify that improper medications led to the decedent's increased pain, the error was harmless. Tolliver v. Visiting Nurse Assn., S-08-357, 278 Neb. 532 The estate asks this court to adopt the Restatement (Second) of Torts § 557A. It contends that adopting § 557A would allow a party who is physically harmed by a defendant’s misrepresentation to recover non-economic damages. In addition, the estate claims that the trial court erred in excluding the testimony of one of its medical experts. We decline to adopt § 557A because the damages the estate seeks were available under its negligence theory. We further conclude that the excluded expert testimony was cumulative to other experts’ testimony. We affirm.

Follow up: the Eighth Circuit Court of Appeals amended its decision on October 21, 2009 but did not change its ruling, its amended holding states: "substantial evidence supports the district court’s conclusion that Graske breached a duty of reasonable care if Doyle was seated on the bow cushion when the boat came on plane." Nebraskan vacationers went fishing in the Grand Cayman Islands. The defendant's boat had an air cushion hull and when defendant accelerated the steering failed, causing the boat to turn sharply left. Plaintiff flew off the boat and suffered severe head trauma when the boat struck him. Defendant removed case to federal district court under admiralty jurisdiction and after taking consideration of plaintiff's 10% contributory negligence awarded plaintiff over $3 million plus $750, 000 loss of consortium damages. Eighth Circuit Court of Appeals affirms damage verdict but noting ambiguous law and precendents from other circuits reverses loss of consortium award.Daniel Doyle v. Leland Graske U.S. Court of Appeals Case No: 08-3144 District of Nebraska - Omaha 083144P.pdf 09/02/2009 . "Substantial evidence supported the district court's determination that defendant breached a duty of reasonable care to plaintiff by bringing his boat to planing speed when plaintiff was in a position of danger; neither did the court err in finding that defendant's negligence in operating the boat was a proximate and substantial cause of plaintiff's injuries; there is no well-settled admiralty rule authorizing loss-of-consortium damages for spouses of non-seafarers negligently injured beyond the territorial waters of the U.S., and the district court erred in awarding plaintiff's spouse damages for loss of consortium"

Nebraska Supreme Court reverses accounting malpractice verdict that was against accountant in 1031 exchange dispute. Frank v. Lockwood, S-06-731, 275 Neb. 735 A Western Nebraska businessman sued his accountant after he sold some real estate but decided not to escrow the entire sale amount for a section 1031 exchange for other property. The accountant earlier advised him that he would be able to offset some of his gain from the real estate sales with his corporation's losses. The businessman was not able to offset the real estate sale income. The IRS gave the plaintiff an extension to file his tax return until October at the accountant's request but the accountant failed to advise the businessman to pay estimated taxes by the regular April 15 due date. The businessman incurred substantial penalties and interest because he did not file and pay his return until December, almost 2 months later than the extended due date. The Scotts Bluff County District Court jury awarded the businessman a verdict of $37000, all of his IRS penalties and interest. Nebraska Supreme Court reverses, holding the plaintiff businessman failed to prove that the IRS interest payment damaged him. The plaintiff should have proven that he could not have borrowed the unpaid tax amount at a rate lower than the IRS rate. While the Nebraska Supreme Court upholds the verdict for the IRS penalties, the court sends it back to the District Court to determine and award only for penalties related to failing to pay the taxes. Justice Connolly dissents. Frank v. Lockwood, S-06-731, 275 Neb. 735 The plaintiff's failure to file the return on time is not the accountant's fault. The penalties incurred by the Franks in this case appear to have been of two types—those incurred because the Franks failed to pay taxes when due on April 15, 2002, and those incurred because the Franks failed to file their returns when due as extended to October 15. Under federal law, I.R.C. § 6651 (2000) provides in subsection (a)(1) that a taxpayer may be assessed a penalty for failure to timely file a return and provides in subsection (a)(2) that a taxpayer may be assessed a separate penalty for failure to timely pay taxes due. In addition, I.R.C. § 6654 (2000) provides that penalties may be assessed for underpayment of estimated taxes. Nebraska law provides for similar penalties for failure to timely file returns, Neb. Rev. Stat. § 77-2789 (Reissue 2003), and for underpayment of estimated taxes, 316 Neb. Admin. Code, ch. 20, § 007 (1998). there was sufficient evidence from which the jury could find that L ockwood was negligent in failing to advise the Franks to pay an estimate of their 2001 tax liability on April 15, 2002. the district court did not err in denying L ockwood’s motion for judgment notwithstanding the verdict with respect to any portion of the damages award that was attributable to penalties for the Franks’ failure to timely pay taxes.to the extent such penalties are penalties for failure to timely file returns, under the facts of this case, they are not recoverable as damages. However, to the extent such penalties are penalties for failure to timely pay the taxes, under the facts of this case, they are recoverable as damages. Because the evidence in the record does not allow us to determine what portion of the penalties are for late payment of the taxes which are recoverable, we find it necessary to remand this cause to the district court for a new trial limited to a determination of the portion of damages attributable to penalties imposed for failure to timely pay taxes and, upon a proper showing, awarding the Franks an amount of damages equal to penalties for failure to timely pay taxes.

Nebraska Supreme Court affirms judgment that non-compete agreement between and insurance agency and one of its brokers was enforceable even after the broker's original employer had merged with another firm. The successor company had valid consideration for a non-compete agreement that barred the defendant from soliciting the company's customers for 2 years after his termination. The Nebraska Supreme Court upheld the trial court's damage calculation by which the Douglas County District Court determined the damages from breaching the non-compete agreement by finding the amount of revenue the defendant generate from the prohibited customers for two years after his termination minus the expenses the plaintiff would have incurred had it retained the business. While the trial court rejected the plaintiff's CPA experts conclusions, it accepted some of his findings as to revenues and expenses. Because the court took the expert's testimony as fact testimony, it did not need to determine if the CPA's testimony passed the Daubert test. Aon Consulting v. Midlands Fin. Benefits, S-06-1256, S-07-034 , 275 Neb. 642

A records storage management company charged its law firm customer a $10,000 fee to permanently remove all of its records from the storage facility. The Omaha law firm filed a declaratory judgment complaint against the company claiming the removal fee was an illegal penalty provision. the Douglas County District Court agreed finding the removal fee was a penalty and not a legitimate liquidated damages fee. The Nebraska Supreme Court reverses holding the removal fee was neither a liquidated damages provision nor a penalty, rather it was a fee for a service. Berens & Tate v. Iron Mt. Info. Mgmt., S-07-193, 275 Neb. 425 The district court erred in finding that the “Permanent Withdrawal” fee was unenforceable. We conclude that the “Permanent Withdrawal” fee is neither a liquidated damages clause nor an illegal penalty provision. Rather, the provision is an enforceable contractual term that sets forth the payment required for services to be performed under the contract. T he judgment of the district court is reversed."

Nebraska Unicameral amends medical lien statute Section 52-401 to clarify that medical providers may only claim their discounted fees and charges when they accepted discounts from private health insurance or health benefit plans. Amended law now allows chiropractors to file liens, but does not public insurance. Stinson Morrison Health Care E-Alert. "On March 10, 2008, Nebraska Governor Dave Heineman approved LB 586, amending Neb. Rev. Stat. 52-401, the Medical Lien Statute. The changes went into effect when approved. Of importance to health care providers is that the changes to the statute clarify that a provider's charges under a perfected lien are only subject to reduction when the provider has contracted for a discount or other limitation with a private medical insurance or health benefit plan. The limitation does not apply to reimbursement under public programs such as Medicare and Medicaid. The provider's option, if available, to pursue full payment when a public program is primary is not affected by LB 586. In 2004, the Nebraska Supreme Court ruled in Midwest Neurosurgery, P.C. v. State Farm Ins., that when a provider has entered into a managed care contract to accept a rate less than its full charge, the lower contracted rate becomes the provider's usual and customary charge for purposes of the Medical Lien Statute. Since that time there has been a question whether that decision applied to public programs such as Medicare. The changes made by LB 586 make it clear the discount provisions only apply to private programs; not public. When a patient has health benefits under a public program as his/her primary insurance, the provider has all options available under those public rules including, to waive billing Medicare and pursue the potential liability settlement at full charges. In addition to the above, LB 586 brought chiropractors under the statute's umbrella. Chiropractors now have the protections and the obligations of the Medical Lien Statute. Remember, that the Medical Lien Statute does not require a provider to pay the injured party's attorney's fees and costs. While these attorney's fees have precedence over a provider's lien, the provider is not obligated to pay, in any proportion, those fees. Also of note, a late amendment provides that even when there is a contractual discount or other limitation, the full provider charge is the measure of damages for medical expenses and not the discounted rate. This last amendment may, or may not, be a subject for future legislative sessions.

Malpractice lawyers will sue other lawyers for settling cases and also for taking cases to court. Nebraska Supreme Court (J. Wright) reinstates $1.6 million malpractice verdict against Omaha's McGrath North law firm in favor of former client LaVista Keno operator Richard Bellino and his trial attorney David Domina. Bellino v. McGrath North, S-06-130, 274 Neb. 130. Lawyers beware of advising clients to accept settlements that another lawyer will say were too low, conversely don't advise a client to beat a settlement offer at trial. The Douglas County jury ruled that McGrath North's client received bad legal advice on how to dump his business partner in their Keno business and then that he would win in court. Although the district court agreed that the defendants' continuous representation through the clients unsuccessful appeal against the former partner's business opportunity lawsuit was timely and that the defendants were negligent , the district judge reduced the jury's $1.6 million to $224K. The district judge reasoned that since the client would owe his partner something eventually, no damage resulted from the attorney's conduct. Supreme Court disagrees. "After (plaintiff) did not accept (former partner's) offer, (Plaintiff's) appeal continued until this court affirmed the judgment in favor of (former partner). The jury could reasonably have concluded that but for the negligence of McGrath North, Plaintiff would have paid substantially less than $3.1 million to attain his stated goals."

Some jurors used a slide rule and looked up the inflation rate to help them determine how much to award in wrongful death case.Nebraska Supreme Court affirms verdict of only $46k for wrongful death of a woman in her late teens. Poppe v. Siefker, S-05-670, 274 Neb. 1 Family members of woman killed in head-on collision on Interstate 80 with suicidal driver sued and the Lancaster County district court jury awarded them $46k. Plaintiffs appealed arguing the verdict was too low and the result of jurors' improper reliance on outside aids to help them calculate the present value of their award. Nebraska Supreme Court agrees that the plaintiffs failed to present clear and convincing evidence that some jurors' use of a financial slide rule and inflation rate on a post-it note presented a reasonable likelihood that the extraneous materials prejudiced the plaintiff. Although Nebraska jury instructions ask jurors to reduce their damage awards to present value, the instructions don't tell jurors how to do it. In this case, neither side offered evidence on how to do this either. The Nebraska Supreme Court affirms the verdict because although the slide rule and inflation rate were not in evidence, the court cant determine whether the jurors' use of the aids hurt or even helped the Plaintiffs. "Given that the jury was not provided any evidence on present value, nor instructed as to how present value was to be calculated, the personal financial slide calculator and the handwritten inflation rate could not have contradicted any of the evidence presented at trial. Nor could the jury have given undue weight to these items, while disregarding other evidence adduced at trial, because there simply was no evidence presented on this issue."

Nebraska court of appeals rules against member of homeowners association that had tried to reach agreements with real estate developers. appeals court in unpublished opinion finds no enforceable contract from the negotiations between the developer and the homeowners that resulted in merely vague promises of covenant details. While the district court had found an enforceable contract, which the appeals court reversed, the reviewing court agrees that a plaintiff in a breach of contract case may not seek profit disgorgement in any even from the defendant. MERLE RAMBO V. SULLIVAN R.E. GROUP, "The district court was clearly wrong to find an enforceable contract from the (vague agreements at the) June 1998 city council meeting. For example, Sullivan and the RNA, whose members opposed the zoning change, clearly agreed to a nine-lot subdivision for purposes of the zoning change. Sullivan and the RNA also clearly contemplated that certain covenants would be entered into and that such covenants would contain provisions favored by the RNA and would be enforceable by the RNA in some manner. However, the draft covenants provided to the city council did not contain all such provisions, which were merely outlined in argument before the council. There were essential terms left open for future agreement, including an enforcement mechanism, a definition of which RNA members would have the ability to enforce the covenants, and what ability, if any, there would be to amend the covenants once filed. We conclude that what was reached at the June 1998 meeting was an agreement for future negotiations. In fact, such negotiations did occur. further disgorgement of profits is not an appropriate remedy in this breach of contract claim. Nebraska has not recognized disgorgement of the breaching party’s profits as damages available to an injured party.