Richardson v. Children's Hosp.

insight that allows us to determine what weight the sentencing
panel gave to this evidence relative to evidence supporting the
other factors. But the majority concedes that the sentencing
panel found each aggravating factor to be “‘significant and
substantial.’” Because of the emphases the State placed on the
impermissible evidence and the sentencing panel’s own state-
ments, I do not believe we can assume the sentencing panel’s
reliance on both prongs of aggravator (1)(d) did not exert a
decisive influence on its sentencing determination and was
therefore harmless beyond a reasonable doubt. I would remand
the cause for resentencing based on the evidence support-
ing the remaining aggravating circumstances and the mitigat-
ing circumstance.
Patricia richardson, sPecial administrator of the estate of
corey richardson, deceased, and Patricia richardson,
individually, aPPellees , v. children’s hosPital
and dr . scott James , aPPellants.
787 N.W.2d 235
Filed July 30, 2010. 	No. S-09-915.
1. Trial: Expert Witnesses: Appeal and Error. A trial court’s ruling in receiving
or excluding an expert’s testimony which is otherwise relevant will be reversed
only when there has been an abuse of discretion.
2. Rules of Evidence: Expert Witnesses. Neb. Rev. Stat. § 27-702 (Reissue 2008)
allows the admission of expert testimony if scientific, technical, or other spe-
cialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue; a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion
or otherwise.
3. Trial: Evidence: Appeal and Error. To preserve a claimed error in admission of
evidence, a litigant must make a timely objection which specifies the ground of
the objection to the offered evidence.
4. Trial: Expert Witnesses. An objection to the opinion of an expert based upon the
lack of certainty in the opinion is an objection based upon relevance.
5. Evidence: Words and Phrases. Relevant evidence means evidence having any
tendency to make the existence of any fact that is of consequence to the deter-
mination of the action more probable or less probable than it would be without
the evidence.
396 	280 NeBRASkA RepoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

6. Expert Witnesses. “Magic words” indicating that an expert’s opinion is based on
a reasonable degree of medical certainty or probability are not necessary.
7. ____. An expert opinion is to be judged in view of the entirety of the expert’s
opinion and is not validated or invalidated solely on the basis of the presence or
lack of the magic words “reasonable medical certainty.”
8. ____. When faced with a proffer of expert scientific testimony, a trial judge must
determine at the outset whether the expert is proposing to testify to (1) scientific
knowledge that (2) will assist the trier of fact to understand or determine a fact
in issue.
9. ____. A trial court should focus on the principles and methodology utilized by
expert witnesses, and not on the conclusions that they generate.
10. Trial: Evidence: Appeal and Error. To constitute reversible error in a civil case,
the admission or exclusion of evidence must unfairly prejudice a substantial right
of a litigant complaining about evidence admitted or excluded.
11. Rules of Evidence. In proceedings where the Nebraska evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
12. Judges: Evidence: Appeal and Error. The exercise of judicial discretion is
implicit in determining the relevance of evidence, and a trial court’s decision
regarding relevance will not be reversed absent an abuse of discretion.
13. Trial: Evidence. evidence that is irrelevant is inadmissible.
Appeal from the District Court for Douglas County: James t.
G leason, Judge. Reversed and remanded for a new trial.
patrick G. Vipond, William R. Settles, and Maria T. Lighthall,
of Lamson, Dugan & Murray, L.L.p., for appellants.
R. Collin Mangrum, of Creighton University School of Law,
and Terrence J. Salerno for appellees.
heavican, 	c.J., 	WriGht, 	connolly, 	G errard, 	stePhan,
mccormack , and miller-lerman, JJ.
heavican, c.J.
INTRoDUCTIoN
patricia Richardson (Richardson), individually and as spe-
cial administrator of the estate of Corey Richardson (Corey),
brought suit against Children’s Hospital and Dr. Scott James
(collectively appellants) in a medical malpractice claim. After
trial, the jury found for Richardson and awarded her $900,000.
RICHARDSoN v. CHILDReN’S HoSp. 	397
Cite as 280 Neb. 396

Appellants appeal from that decision. We reverse, and remand
for a new trial.
BACkGRoUND
This case is a consolidated action stemming from the medi-
cal treatment and death of Corey. Richardson brought the
first action in her capacity as special administrator of Corey’s
estate, seeking damages for predeath pain and suffering. She
brought the second action individually, as Corey’s next of kin,
pursuant to Nebraska’s wrongful death statute.1 The actions
were consolidated for trial.
Richardson was Corey’s foster mother and later adopted
him. Corey had been removed from his biological parents’
home at 8 weeks of age after his biological father shook him,
causing a head injury. Corey was placed with Richardson in
February 2003. Because of his head injuries, Corey was devel-
opmentally delayed, although he made a great deal of progress
with Richardson. Corey was mostly blind and was fed through
a gastric button, a tube that allowed nutrition to go directly into
his stomach. Corey’s pediatrician testified that although Corey
was profoundly delayed, he was an otherwise healthy 3-year-
old boy.
Richardson testified that Corey began retching on Monday,
August 15, 2005, and that she thought he had “the flu.” Corey
would continue to retch when she fed him through the gastric
button and would stop only if Richardson allowed the food to
come back out through the decompression tube. The next day,
Richardson made two calls to Corey’s pediatrician. After the
second call, the pediatrician directed Richardson to take Corey
to Children’s Hospital.
Richardson testified that she was concerned about Corey
because he could not keep down Depakote, his antiseizure
medication, or any other medications. Richardson testified
that she believed Corey to be significantly dehydrated because
he had less saliva production than usual and because he had
fewer wet diapers than usual. on cross-examination, how-
ever, Richardson stated that she had informed the staff at
1 Neb. Rev. Stat. § 30-809 (Reissue 2008).
398 	280 NeBRASkA RepoRTS

Children’s Hospital that Corey had three wet diapers over a
24-hour period.
Richardson first took Corey to Children’s Hospital at 9:30
p.m. on August 16, 2005, and remained there until Corey was
discharged 3 hours later. While at Children’s Hospital, Corey
was examined, a blood culture was taken, and he was given an
antinausea suppository. Richardson stated that she was unable
to persuade Corey to take any fluids during that time. Because
she believed Corey to be dehydrated, Richardson called the
pediatrician the next morning, August 17, and was told to take
Corey back to Children’s Hospital.
Upon arrival at Children’s Hospital on August 17, 2005,
Richardson informed staff that she had been up through the
night with Corey, that he had not taken any fluids, and that
Corey’s doctor had recommended intravenous (IV) fluids.
Richardson testified that Dr. James examined Corey early dur-
ing that visit, but that he did not conduct another examination
before Corey was discharged. Richardson testified that Dr.
James informed her that Corey had an elevated white blood cell
count, which was an indication of an infection. An x ray was
taken, as well as a urine sample, but no other signs of infection
were found. Richardson testified that she asked Dr. James why
he would not give Corey IV fluids and that Dr. James stated
Corey did not need an IV.
Testimony at trial indicated that Corey had a body tempera-
ture of 95.7 degrees Fahrenheit during this second visit. Low
body temperature can be indicative of dehydration. Appellants
attempted to introduce past medical records regarding Corey’s
low body temperature, but the records were excluded as irrel-
evant. Appellants made an offer of proof that prior medical
records would demonstrate that Corey had a difficult time
regulating his body temperature, indicating that his low body
temperature may not have been an indicator of dehydration.
Richardson also testified that she was uncomfortable with
Corey’s being discharged at that time and had wanted Corey to
have IV fluids because she was concerned about dehydration.
Corey was discharged shortly after 3 p.m. on August 17, 2005,
and Richardson stated that she was again unable to persuade
Corey to take any liquids after he was discharged.
RICHARDSoN v. CHILDReN’S HoSp. 	399
Cite as 280 Neb. 396

Richardson’s oldest daughter assisted Richardson in caring
for Corey and Richardson’s other children the night of August
17, 2005. Richardson slept while her oldest daughter took care
of Corey. When Richardson woke around 5 a.m. on August 18,
she realized that Corey was not breathing properly. An ambu-
lance was called to transport Corey to Children’s Hospital.
Corey died that morning at the hospital. An autopsy later deter-
mined that Corey died of necrotizing hemorrhagic pancreatitis,
an inflammation of the pancreas severe enough to cause bleed-
ing and tissue death.
Richardson filed a wrongful death action against appel-
lants in her own behalf and also on behalf of Corey’s estate
for his predeath pain and suffering. The two actions were
consolidated and tried to a jury. Richardson alleged that appel-
lants were negligent in not hydrating Corey with IV fluids
and that their negligence was a direct and proximate cause of
Corey’s death.
Dr. Thomas McAuliff’s video deposition was played for the
jury during Richardson’s case in chief. His testimony will be
discussed in more detail below. Briefly, however, Dr. McAuliff
testified it was his opinion that appellants had not met the
standard of care for treating Corey on August 17, 2005, and
that Corey should have been given IV fluids. Dr. McAuliff
also testified that “the outcome would have been different” had
Corey received IV fluids. Richardson rested her case in chief
at this point.
Appellants’ first witness was Dr. Steven krug, a board-
certified pediatrician and an expert in pediatric emergency
medicine. Dr. krug testified as to standard of care, and stated
that there is no clear treatment for pancreatitis. Dr. krug testi-
fied that the symptoms of pancreatitis in children of Corey’s
age are often variable and that it is difficult to diagnose. He
also stated that hydration does not prevent pancreatitis and
that hydration simply treats a symptom of the disease and pro-
duces variable results. Dr. krug stated that a large percentage
of patients with necrotizing hemorrhagic pancreatitis “don’t
make it.” Dr. krug gave his opinion that hydration would not
have changed the outcome in Corey’s case, but he also stated
that a reasonable course to take would have been to admit
400 	280 NeBRASkA RepoRTS

Corey to the hospital after his second visit and administer
IV fluids.
Dr. James also testified and indicated that he had not been
notified by Corey’s pediatrician that Corey might need to be
evaluated for dehydration or put on IV fluids. Dr. James stated
that Corey’s only abnormal test was the blood urea nitrogen.
He also stated that other conditions, aside from dehydration,
can cause an elevated blood urea nitrogen. Dr. James testified
that around that same period of time, he had seen a number of
children with a gastrointestinal virus that lasted between 2 and
5 days. Dr. James testified that oral hydration is the preferred
method for mild to moderate dehydration. Dr. James also stated
that he had planned for Corey to stay in the hospital longer, but
that Richardson indicated she needed to leave to care for her
other children.
Dr. Steven Werlin, a specialist in pediatric gastroenterol-
ogy, also testified as an expert for appellants. Dr. Werlin has
published more than 10 original articles and more than 20
book chapters on various aspects of pancreatitis diagnosis and
treatment. Dr. Werlin testified regarding the treatment of pan-
creatitis and stated that while there is no specific treatment, in
general, children are kept as healthy as possible to allow the
pancreas time to repair itself. Dr. Werlin also stated that in his
experience, hydration does not treat pancreatitis and many chil-
dren with necrotizing hemorrhagic pancreatitis die.
Dr. Werlin stated that in patients with severe hemorrhagic
pancreatitis, the disease generally moves quickly and that no
intervention can save the patient. Dr. Werlin also testified that
in his experience, children with pancreatitis may not appear
very ill at the beginning of the disease, but that their condi-
tion often rapidly declines. Dr. Werlin could not say why some
children with hemorrhagic pancreatitis died quickly and oth-
ers recovered. Dr. Werlin gave his opinion that children like
Corey who contract the disease typically do not survive. Dr.
Werlin further stated that hydration would not have an effect
on the progression of pancreatitis. on cross-examination, Dr.
Werlin acknowledged that initiating hydration in children with
pancreatitis is important because the outcome for even severe
pancreatitis is variable. However, Dr. Werlin was not allowed
RICHARDSoN v. CHILDReN’S HoSp. 	401
Cite as 280 Neb. 396

to give his ultimate opinion that Corey would have died even if
he had been given IV fluids.
After appellants rested, Richardson offered video deposi-
tion testimony from Dr. Christine odell as rebuttal testimony.
Appellants objected, arguing that Dr. odell’s testimony was
cumulative to Richardson’s case in chief and, further, that her
testimony was lacking in foundation. That objection was over-
ruled, and Dr. odell’s video deposition was played for the jury.
Dr. odell testified regarding the applicable standard of care
and also regarding the presence of bacteria in Corey’s blood,
something not raised in appellants’ case in chief.
Appellants offered surrebuttal testimony from Dr. James
and Dr. edward Mlinek, Jr. The trial court denied the motion
to give surrebuttal evidence, but allowed appellants to make
offers of proof. Appellants stated Dr. James would testify that
only one blood culture was taken and that the fact the blood
culture was negative did not eliminate the possibility of sep-
sis, which is a bacterial infection in the blood. Dr. James also
would have testified that the signs and symptoms of pancreati-
tis were not present and that he did not act unreasonably in not
ordering more tests to check for pancreatitis. Dr. Mlinek would
have testified that he had treated a number of children with
Corey’s symptoms who had gastritis and not pancreatitis. Dr.
Mlinek would have further testified that children on Depakote
commonly contracted gastritis and that pancreatitis, though
associated with Depakote, was still a relatively rare diagno-
sis. Dr. Mlinek also would have testified as to Corey’s level
of dehydration.
At the close of the evidence, appellants moved for a directed
verdict, arguing that Richardson’s experts had not testified to
a reasonable degree of medical certainty and that their testi-
monies lacked foundation. Appellants also objected to the lan-
guage of instruction No. 18 as to Corey’s pain and suffering,
arguing that Richardson had not established pain and suffering.
Instruction 18 states:
If you return a verdict for the plaintiff, then you
must determine the amount of money and the monetary
value of the comfort and companionship that Corey . . .
would have contributed to . . . Richardson had he lived.
402 	280 NeBRASkA RepoRTS

In making this determination you should consider the
following:
1. The physical pain and suffering which Corey . . .
endured as a result of the defendants’ negligence.
Appellants also objected to Richardson’s closing argument
that the jurors should consider the amount of money they were
being compensated for serving on the jury when calculating
Richardson’s loss of consortium. Richardson’s counsel had
stated, “[Y]ou guys are here at $35 a day for the inconvenience
of rearranging your schedules for taking time out of your life
to do something different. $35 a day for twenty-eight years is
$357,000.” Appellants argued that it was an impermissible per
diem argument, and the trial court overruled the objection. The
jury found for Richardson and awarded her $900,000 in dam-
ages. Appellants then moved for a new trial, which the trial
court denied.
ASSIGNMeNTS oF eRRoR
Appellants assign that the district court erred in (1) admit-
ting Richardson’s expert evidence, because the testimony did
not sufficiently establish causation and was insufficient to
sustain a verdict; (2) preventing Dr. Werlin, an expert witness,
from giving his ultimate opinions regarding causation; (3)
excluding relevant evidence of Corey’s past medical history;
(4) allowing Dr. odell’s rebuttal testimony, because it raised
issues not presented in, and was repetitive of, Richardson’s
case in chief; (5) not allowing appellants to present surrebuttal
evidence; (6) instructing the jury that it could award damages
for Corey’s pain and suffering despite the absence of evidence
to support this element of damages; (7) allowing Richardson to
use an improper per diem argument for damages; and (8) over-
ruling appellants’ motion for a new trial.
STANDARD oF ReVIeW
[1] A trial court’s ruling in receiving or excluding an expert’s
testimony which is otherwise relevant will be reversed only
when there has been an abuse of discretion.2
2 Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
RICHARDSoN v. CHILDReN’S HoSp. 	403
Cite as 280 Neb. 396

ANALYSIS
richardson’s exPert evidence Was sufficient
to sustain verdict
Appellants first argue that the trial court erred in admitting
Richardson’s expert evidence, because the testimony did not
sufficiently establish causation and was insufficient to sustain a
verdict. Appellants further allege that the expert testimony rose
only to “loss of chance,” which in Nebraska is not sufficient
to establish causation. Richardson argues that appellants failed
to preserve this issue on appeal, because appellants objected
only on “‘form and foundation,’” and not under Neb. Rev. Stat.
§ 27-702 (Reissue 2008).3
[2,3] Section 27-702 allows the admission of expert testi-
mony “[i]f scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue[;] a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.” To preserve a
claimed error in admission of evidence, a litigant must make a
timely objection which specifies the ground of the objection to
the offered evidence.4
Appellants made a motion in limine “[t]o prohibit and/or
strike the testimony of Dr. McAuliff and Dr. odell concern-
ing causation” on the basis of § 27-702. Richardson, on the
other hand, contends that a motion in limine is insufficient to
preserve a § 27-702 objection on appeal.5 However, the record
demonstrates that appellants objected as to “form and foun-
dation” during the trial deposition, made a motion in limine
on § 27-702 grounds, and then objected at trial. We note that
appellants objected to Dr. McAuliff’s testimony on the grounds
that he gave an opinion in his trial deposition which he did
not give in his discovery deposition and that his opinion on
causation was not given with a reasonable degree of medical
certainty. We therefore conclude that appellants preserved the
objection for appeal.
3 Brief for appellees at 11.
4 Allphin v. Ward, 253 Neb. 302, 570 N.W.2d 360 (1997).
5 See State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).
404 	280 NeBRASkA RepoRTS

[4-7] An objection to the opinion of an expert based upon
the lack of certainty in the opinion is an objection based upon
relevance.6 Relevant evidence means evidence having any tend-
ency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable
than it would be without the evidence.7 We have stated that
“‘[m]agic words’ indicating that an expert’s opinion is based
on a reasonable degree of medical certainty or probability are
not necessary.”8 An expert opinion is to be judged in view
of the entirety of the expert’s opinion and is not validated or
invalidated solely on the basis of the presence or lack of the
magic words “reasonable medical certainty.”9
Dr. McAuliff stated that in his opinion, Corey was mod-
erately dehydrated on August 17, 2005, and that if he had
been rehydrated, “the outcome would have been different.” Dr.
McAuliff also testified that anything greater than 1.030 for the
urinalysis specific gravity indicated significant dehydration and
that Corey’s levels were 1.034. Dr. McAuliff testified that he
believed Dr. James deviated from the standard of care in sev-
eral significant ways, but particularly by not hydrating Corey
through IV fluids. Dr. McAuliff stated that he believed that
with hydration, Corey could have recovered.
Appellants contend that because Richardson’s experts’ tes-
timony was not given to a reasonable degree of medical cer-
tainty, it rose only to “loss of chance,” which, as noted, in
Nebraska, is insufficient to establish causation. We discuss
“loss of chance” in Rankin v. Stetson.10
In Rankin, the plaintiff offered expert testimony that stated
“it was more likely than not” that the plaintiff would have
recovered from her spinal cord injury had surgery been per-
formed within the first 72 hours.11 We stated that an opinion
6 Paulsen v. State, 249 Neb. 112, 541 N.W.2d 636 (1996).
7 Id.
8 Id. at 121, 541 N.W.2d at 643.
9 Id.
10 Rankin v. Stetson, 275 Neb. 775, 749 N.W.2d 460 (2008).
11 Id. at 779, 749 N.W.2d at 464.
RICHARDSoN v. CHILDReN’S HoSp. 	405
Cite as 280 Neb. 396

that a plaintiff would have had “a ‘better prognosis’ and a
‘chance of avoiding permanent neurological injury’” did not
establish the certainty of proof that was required.12 However,
because the doctor’s opinion also stated that early surgical
decompression of the spinal cord more likely than not would
have led to an improved outcome, the evidence was sufficient
to establish causation.13
Unlike in Rankin, where the language at issue indicated
“a better prognosis” or “a chance,” in this case, Dr. McAuliff
stated that he believed that with hydration, Corey could have
recovered. Such was a sufficient basis for Dr. McAuliff’s
opinion that Corey was dehydrated and that IV fluids would
have made a difference in the ultimate outcome. We conclude
these opinions were given with a sufficient degree of medical
certainty and were sufficient to establish causation for purposes
of Richardson’s case in chief. Appellants’ argument to the con-
trary is without merit.
trial court abused its discretion by not alloWinG
dr . Werlin to G ive his ultimate
oPinion on causation
Appellants’ second assignment of error is that the trial
court erroneously excluded Dr. Werlin’s expert opinion on
the ultimate causation of Corey’s death. Richardson objected
to Dr. Werlin’s testimony on the basis of “foundation” and
“702.” The trial court sustained the objections, but gave no
further explanation. Dr. Werlin was allowed to testify that
in his expert opinion, hydration does not treat pancreatitis
and that Corey’s pancreatitis was particularly bad. However,
Dr. Werlin was not permitted to testify that giving Corey IV
fluids would not have prevented his death. Following the sus-
taining of Richardson’s objection by the district court, appel-
lants were permitted to make an offer of proof regarding Dr.
Werlin’s testimony.
[8,9] When faced with a proffer of expert scientific testi-
mony, a trial judge must determine at the outset whether the
12 Id. at 787, 749 N.W.2d at 469.
13 Id.
406 	280 NeBRASkA RepoRTS

expert is proposing to testify to (1) scientific knowledge that
(2) will assist the trier of fact to understand or determine a fact
in issue.14 The trial court should focus on “the principles and
methodology utilized by expert witnesses, and not on the con-
clusions that they generate.”15
one of the key questions in this case was standard of care
and whether appellants’ actions, or lack thereof, contributed to
Corey’s death. Dr. Werlin was board certified in both pediatrics
and pediatric gastroenterology. Although Dr. Werlin did state
that it was impossible to know why some children died of pan-
creatitis and others did not, he also stated that it was possible
to retrospectively predict survivability.
Richardson alleged that appellants’ decision not to give
Corey IV fluids directly contributed to his death. Dr. Werlin, as
an expert witness in the diagnosis and treatment of pancreati-
tis, would have testified that hydration would not have had an
impact on the outcome of Corey’s case. Dr. Werlin’s ultimate
opinion on causation was scientific knowledge that would have
helped the trier of fact understand or determine a fact at issue.
We therefore find that the trial court abused its discretion in not
allowing Dr. Werlin to testify.
[10] To constitute reversible error in a civil case, the admis-
sion or exclusion of evidence must unfairly prejudice a sub-
stantial right of a litigant complaining about evidence admitted
or excluded.16 We find that appellants were unfairly prejudiced
because their expert was not allowed to give his opinion on
causation. We further find that this was reversible error on the
part of the trial court and, accordingly, remand this cause to the
district court for a new trial.
trial court abused its discretion in excludinG
relevant evidence reGardinG corey’s
Past medical history
Appellants 	next 	argue 	that 	the 	trial 	court 	erroneously
excluded evidence of Corey’s past medical history. Although
14 Rankin, supra note 10.
15 Schafersman, supra note 2, 262 Neb. at 234, 631 N.W.2d at 878.
16 Kirchner v. Wilson, 262 Neb. 607, 634 N.W.2d 760 (2001).
RICHARDSoN v. CHILDReN’S HoSp. 	407
Cite as 280 Neb. 396

the foregoing determination resolves this appeal, we address
the exclusion of Corey’s past medical records because it is an
issue that is likely to recur.
Appellants argue that while Drs. McAuliff and odell cited
Corey’s low body temperature on August 17, 2005, as evidence
of dehydration, prior medical records indicated that Corey’s
body temperature fluctuated widely due to his compromised
neurological condition. Richardson objected to the prior medi-
cal records on the basis of relevancy, and the trial court sus-
tained that objection.
[11-13] 	In 	proceedings 	where 	the 	Nebraska 	evidence
Rules apply, the admissibility of evidence is controlled by the
Nebraska evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility.17 The exercise of judicial discretion is implicit in deter-
mining the relevance of evidence, and a trial court’s decision
regarding relevance will not be reversed absent an abuse of
discretion.18 To be admissible, evidence must have a “tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.”19 evidence that is irrelevant
is inadmissible.20
Richardson argues that the trial court did not abuse its dis-
cretion in excluding Corey’s past medical records, because
appellants did not make a discovery disclosure that any expert
intended to rely on medical records to form an opinion.
Richardson also argues that the medical records were exclud-
able as hearsay, that appellants’ experts never offered a medical
opinion that Corey was not dehydrated, and that Richardson’s
experts could have been cross-examined regarding their opin-
ions based on the medical records. We disagree.
First, it is clear from the record that Richardson and her
experts first raised the issue of Corey’s body temperature as a
17 State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).
18 Id.
19 Neb. Rev. Stat. § 27-401 (Reissue 2008).
20 Neb. Rev. Stat. § 27-402 (Reissue 2008).
408 	280 NeBRASkA RepoRTS

sign of dehydration and that appellants attempted to introduce
Corey’s medical records to provide another explanation for
Corey’s low body temperature. Thus, we conclude that appel-
lants attempted to introduce past medical records as substantive
evidence of Corey’s inability to regulate his body temperature
as part of his neurological issues and not for the reasons argued
by Richardson.
We also note that Richardson objected to past medical
records based only on relevancy. Because Richardson was
arguing that Corey’s low internal temperature was a sign of
severe dehydration and required IV fluids, Corey’s past medi-
cal records were relevant to demonstrate his inability to main-
tain his body temperature. We therefore find that exclusion of
Corey’s past medical records constituted an abuse of discretion
and was also reversible error.
P laintiff’s P er diem arGument
Was not imProPer
We next turn to whether Richardson’s counsel made an
improper per diem argument with respect to damages. Again,
we address this issue because it is likely to recur. During clos-
ing arguments, counsel stated:
Now, the Judge read you the instruction that said you
have to consider the shortest life expectancy because,
obviously, [Richardson’s life] expectancy is twenty-eight
years. If she would have died, Corey would have had to
be taken care of and live with somebody else. So you can
consider only that period of time for the loss here. And
one measure that — that I can come up with and you
guys are here at $35 a day for the inconvenience of rear-
ranging your schedules for taking time out of your life to
do something different. $35 a day for twenty-eight years
is $357,000.
We note that the conduct of final argument is within the
sound discretion of the trial court, and absent abuse of that
discretion, the trial court’s ruling regarding final argument
will not be disturbed.21 We previously addressed per diem
21 Sundeen v. Lehenbauer, 229 Neb. 727, 428 N.W.2d 629 (1988).
RICHARDSoN v. CHILDReN’S HoSp. 	409
Cite as 280 Neb. 396

arguments in Baylor v. Tyrrell.22 In Baylor, the plaintiff’s attor-
ney used a mathematical formula to suggest a sum for pain and
suffering. We declined to find any error in the argument at that
time. And more recently, the Court of Appeals addressed per
diem arguments in Dowd v. Conroy.23 The Court of Appeals
noted in that case that there is no rule in Nebraska forbidding
per diem arguments, or the suggestion of mathematical equa-
tions, during closing argument.24 We find there was nothing
improper in a per diem argument in this case. And we keep in
mind that the amount of damages to be awarded is a determina-
tion solely for the fact finder, and the fact finder’s decision will
not be disturbed on appeal if it is supported by the evidence
and bears a reasonable relationship to the elements of the dam-
ages proved.25 Therefore, appellants’ fourth assignment of error
is without merit.
aPPellants’ remaininG assiGnments
of error
We need not reach appellants’ remaining assignments of
error, which are rendered moot by our decision to reverse, and
remand for a new trial.
CoNCLUSIoN
Richardson’s expert witness, Dr. McAuliff, gave his opinion
with a reasonable degree of medical certainty, and therefore
appellants’ first assignment of error is without merit. We also
find that the per diem argument in this case was not inappro-
priate. However, the trial court did abuse its discretion by pre-
venting appellants’ expert, Dr. Werlin, from giving his ultimate
opinion on causation and by excluding relevant evidence from
Corey’s past medical records. We further find that these abuses
22 Baylor v. Tyrrell, 177 Neb. 812, 131 N.W.2d 393 (1964), disapproved
on other grounds, Larsen v. First Bank, 245 Neb. 950, 515 N.W.2d 804
(1994).
23 Dowd v. Conroy, 1 Neb. App. 230, 491 N.W.2d 375 (1992).
24 Id.
25 Aon Consulting v. Midlands Fin. Benefits, 275 Neb. 642, 748 N.W.2d 626
(2008).
410 	280 NeBRASkA RepoRTS

of discretion constitute reversible error. Therefore, we reverse,
and remand the cause for a new trial.
reversed and remanded for a neW trial .
in re interest of JorGe o., a child under 18 years of aGe .
state of nebraska , aPPellee , v. JorGe o., aPPellee ,
and nebraska dePartment of health and
human services , aPPellant.
in re interest of denG m., a child under 18 years of aGe .
state of nebraska , aPPellee , v. denG m., aPPellee ,
and nebraska dePartment of health and
human services , aPPellant.
786 N.W.2d 343
Filed July 30, 2010. 	Nos. S-09-966, S-09-983.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
3. Juvenile Courts: Jurisdiction: Statutes. As a statutorily created court of limited
and special jurisdiction, a juvenile court has only such authority as has been con-
ferred on it by statute.
4. Administrative Law. Agency regulations properly adopted and filed with the
Secretary of State of Nebraska have the effect of statutory law.
Appeals from the Separate Juvenile Court of Lancaster
County: reGGie l. ryder, Judge. Affirmed in part, and in
part vacated.
eric 	M. 	Stott, 	Special Assistant Attorney 	General, 	for
appellant.
Dennis R. keefe, Lancaster County public Defender, for
appellees Jorge o. and Deng M.
Valerie R. McHargue and Yohance L. Christie, 	Deputy
Lancaster County public Defenders, for appellee Jorge o.
IN Re INTeReST oF JoRGe o. 	411
Cite as 280 Neb. 411