Slater v. Ichtertz

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SLATER v. ICHTERTZ
Cite as 320 Neb. 159
Glen Slater and Anne Slater, appellants, v.
Dolf Ichtertz, M.D., and Nebraska Hand &
Shoulder Institute, P.C., appellees.
___ N.W.3d ___
Filed October 24, 2025. 	No. S-23-331.
1. Judgments: Directed Verdict: Appeal and Error. Appellate review of
a ruling on a motion for directed verdict is de novo on the record.
2. Trial: Expert Witnesses: Judgments: Appeal and Error: Words and
Phrases. An appellate court reviews de novo whether the trial court
applied the correct legal standards for admitting an expert’s testimony,
and an appellate court reviews for abuse of discretion how the trial
court applied the appropriate standards in deciding whether to admit
or exclude an expert’s testimony. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Trial: Expert Witnesses: Evidence: Appeal and Error. It is within the
trial court’s discretion to determine whether there is sufficient founda-
tion for an expert witness to give his or her opinion about an issue in
question. An appellate court reviews the trial court’s conclusions with
regard to evidentiary foundation for an abuse of discretion.
4. Trial: Judges. A trial judge has broad discretion over the conduct of a
trial, and, absent abuse, that discretion should be respected.
5. Directed Verdict. In a civil case, a directed verdict is proper 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.
6. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling
on a motion for directed verdict, an appellate court must treat the motion
as an admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such being the
case, the party against whom the motion is directed is entitled to have
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every controverted fact resolved in its favor and to have the benefit of
every inference which can reasonably be deduced from the evidence.
7. Directed Verdict: Evidence. If there is any evidence which will sustain
a finding for the party against whom the motion for directed verdict is
made, the case may not be decided as a matter of law.
8. Directed Verdict: Jurors. If reasonable jurors could find facts that
would allow the nonmoving party to prevail, a directed verdict should
not be granted.
9. Malpractice: Physicians and Surgeons: Proof: Proximate Cause.
To establish a prima facie case of medical malpractice, a plaintiff must
show (1) the applicable standard of care, (2) that the defendant(s) devi-
ated from that standard of care, and (3) that this deviation was the proxi-
mate cause of the plaintiff’s harm.
10. Malpractice: Physicians and Surgeons: Expert Witnesses. Generally,
expert testimony is required to establish each element in a medical mal-
practice case.
11. Malpractice: Physicians and Surgeons. Neb. Rev. Stat. § 44-2810
(Reissue 2021) defines the general standard of care in medical mal-
practice cases as the ordinary and reasonable care, skill, and knowledge
ordinarily possessed and used under like circumstances by members of
the profession engaged in a similar practice in similar localities, and it
provides that to determine what constitutes such ordinary and reasonable
care, skill, and diligence in a particular case, the test is that which health
care providers, in the same community or in similar communities and
engaged in the same or similar lines of work, would ordinarily exercise
and devote to the benefit of their patients under like circumstances.
12. Malpractice: Physicians and Surgeons: Proximate Cause: Damages.
In the medical malpractice context, the element of proximate causation
requires proof that the physician’s deviation from the standard of care
caused or contributed to the injury or damage to the plaintiff.
13. Negligence. Res ipsa loquitur is an exception to the general rule that
negligence cannot be inferred.
14. ____. Res ipsa loquitur is a procedural tool that, if applicable, allows an
inference of a defendant’s negligence to be submitted to the fact finder,
where it may be accepted or rejected. Res ipsa loquitur is best described
as a rule of evidence, not a rule of substantive law.
15. Malpractice: Physicians and Surgeons: Expert Witnesses: Proof. In
a medical malpractice case, the theory of res ipsa loquitur may gener-
ally be relied upon in several situations: (1) when the act causing the
injury is so palpably negligent that it may be inferred as a matter of law,
i.e., leaving foreign objects, sponges, scissors, et cetera, in the body, or
amputation of a wrong member; (2) when the general experience and

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SLATER v. ICHTERTZ
Cite as 320 Neb. 159
observation of mankind teaches that the result would not be expected
without negligence; and (3) when proof by experts in an esoteric field
creates an inference that negligence caused the injuries.
16. Negligence: Proof. There are three elements that must be satisfied for
the theory of res ipsa loquitur to apply: (1) The occurrence must be one
which would not, in the ordinary course of things, happen in the absence
of negligence; (2) the instrumentality which produces the occurrence
must be under the exclusive control and management of the alleged
wrongdoer; and (3) there must be an absence of explanation by the
alleged wrongdoer.
17. ____: ____. When all three elements of res ipsa loquitur have been met
and the doctrine is applicable, the essence of the doctrine is that an
inference of negligence arises without further proof.
18. Negligence. The doctrine of res ipsa loquitur allows an inference of a
defendant’s negligence to be submitted to the fact finder, where it may
be accepted or rejected.
19. Negligence: Proof. Res ipsa loquitur allows the inference of the
defendant’s negligence because the inference is probable and more plau-
sible than any other explanation propounded, and therefore, the plaintiff
need not establish the exact manner in which the plaintiff was injured,
or the precise act or event which precipitated the plaintiff’s injury.
20. Negligence: Evidence: Juries. To decide if the doctrine of res ipsa
loquitur applies, a court must determine whether evidence exists from
which reasonable persons can say that it is more likely than not that the
three elements of res ipsa loquitur have been met. If such evidence is
presented, then there exists an inference of negligence which presents a
question of material fact for the jury.
21. Courts: Negligence: Proof. The court should not weigh the evidence
to determine whether res ipsa loquitur applies. Instead, the court must
determine whether there is sufficient evidence from which reasonable
persons could find that it is more likely than not that the three elements
of res ipsa loquitur have been proved and that it is therefore more likely
than not that there was negligence associated with the event.
22. Appeal and Error. An appellate court may, at its discretion, discuss
issues unnecessary to the disposition of an appeal where those issues are
likely to recur during further proceedings.
23. Trial: Expert Witnesses: Proof. It is the burden of the proponent of
expert testimony to establish the necessary foundation for its admission.
24. Malpractice: Physicians and Surgeons: Expert Witnesses. Expert
testimony concerning the standard of care in a medical malpractice case
should not be received if it appears the witness is not in possession of

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such facts as will enable him or her to express a reasonably accurate
conclusion as distinguished from a mere guess or conjecture.
25. Evidence. Opinion evidence which is unsupported by appropriate foun-
dation is not admissible.
26. Trial: Expert Witnesses. Triers of fact are not required to take opinions
of experts as binding upon them, and determining the weight to be given
expert testimony is uniquely the province of the fact finder.
27. Trial: Evidence: Witnesses. Matters of courtroom management, includ-
ing the efficient management of evidence and witnesses, are left to the
discretion of the trial court.
28. Witnesses: Good Cause: Proof. Under Neb. Rev. Stat. § 24-734(5)(a)
(Cum. Supp. 2022), it is the moving party’s burden to show good cause
for permitting a witness to testify by telephonic, videoconference, or
similar methods in any civil case.
29. Trial: Appeal and Error. An issue not presented to or decided on by
the trial court is not an appropriate issue for consideration on appeal.
Appeal from the District Court for Hall County: Patrick M.
Lee, Judge. Reversed and remanded for a new trial.
Robert M. Sullivan, of Sullivan Law, P.C., L.L.O., for
appellants.
Mark A. Christensen and Isaiah J. Frohling, of Cline,
Williams, Wright, Johnson & Oldfather, L.L.P., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Freudenberg, JJ.
Per Curiam.
In this medical malpractice action, the trial court directed
a verdict for the defendants at the close of the plaintiffs’
case in chief. On appeal, the plaintiffs assign error to that
ruling, arguing that the evidence was sufficient to survive a
directed verdict under both a traditional medical malpractice
theory and the doctrine of res ipsa loquitur. They also assign
error to several of the trial court’s evidentiary and proce-
dural rulings.
Because we conclude the directed verdict should not have
been granted on this record, we reverse the judgment and

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SLATER v. ICHTERTZ
Cite as 320 Neb. 159
remand the cause for a new trial. Regarding the remaining
assignments of error, we exercise our discretion to address
those likely to recur on remand.
I. BACKGROUND
1. Surgery
In 2017, Dr. Dolf Ichtertz diagnosed Glen Slater with
severe cubital tunnel syndrome, a condition that occurs when
the ulnar nerve is compressed or entrapped at the elbow.
Ichtertz recommended that Slater undergo a surgical procedure
the parties describe as an “endoscopic cubital tunnel release.”
Slater elected to have the surgical procedure, and Ichtertz
performed it.
With Slater under anesthesia, Ichtertz made a small inci-
sion in Slater’s left arm near his elbow and inserted a hand-
held instrument, or “cutting guide,” that was designed to
slide over the fascia covering the ulnar nerve. It is undisputed
that while Ichtertz was attempting to advance the guide
proximally along Slater’s ulnar nerve to get it into position,
he encountered resistance. He described “struggling” with
the guide for a few seconds and stated that when he looked
through the scope to identify what was causing the resistance,
he saw that Slater’s ulnar nerve was “bunching up” on the
front end of the guide. Ichtertz removed the guide and dis-
covered that a single fascicle of Slater’s ulnar nerve had been
transected, or “cut in half,” but was not displaced. Ichtertz
repaired the fascicle using sutures and completed the cubital
tunnel release procedure using different instruments.
2. Lawsuit
In 2019, Slater and his wife, Anne Slater, filed a medical
malpractice action against Ichtertz and his employer, Nebraska
Hand & Shoulder Institute, P.C. (collectively Ichtertz), in the
district court for Hall County. The operative complaint gener-
ally alleged that Ichtertz had negligently performed the cubital
tunnel release procedure on Slater and that his negligence

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SLATER v. ICHTERTZ
Cite as 320 Neb. 159
caused permanent injury to Slater’s left arm and hand, includ-
ing severe ulnar neuropathy, weakness, loss of fine motor
skills, and disfigurement. The complaint sought a judgment
against Ichtertz for special and general damages.
Ichtertz admitted performing surgery on Slater’s ulnar nerve,
but he specifically denied any negligence and he disputed the
cause, nature, and extent of Slater’s injuries and damages.
The case was set for a 5-day jury trial in April 2023.
3. Pretrial Motions and Rulings
(a) Motion to Allow Witness Testimony
by Videoconference
Several months before trial, the Slaters filed a motion seek-
ing a blanket order allowing “witnesses to testify via video-
conference technology at the upcoming trial in this matter.”
As authority for the request, the Slaters cited Neb. Rev. Stat.
§ 24-734(5)(a) and (b) (Cum. Supp. 2022). Ichtertz objected
to the motion under § 24-734(5)(c). After an evidentiary hear-
ing, the court overruled the motion. Additional details about
the hearing and the court’s ruling will be discussed later in
the analysis.
(b) Ruling on Objections to
Trial Deposition
After their motion to allow witness testimony by video-
conference was overruled, the Slaters took a video deposi-
tion of their out-of-state medical expert, Dr. Robert Wysocki,
for use at trial. Wysocki is a board-certified orthopedic sur-
geon who specializes in hand and upper extremity issues.
Wysocki’s qualification to testify as an expert in this matter is
not challenged.
In an earlier discovery deposition, Wysocki testified that in
his opinion, Ichtertz breached the applicable standard of care
by using the surgical instrument to apply a significant amount
of force directly to the ulnar nerve, resulting in severe ulnar
nerve injury. When Wysocki’s video deposition was taken for

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SLATER v. ICHTERTZ
Cite as 320 Neb. 159
use at trial, he was asked for his opinion on whether Ichtertz
met the standard of care when performing Slater’s cubital tun-
nel release surgery. Before Wysocki could answer, Ichtertz
asked to voir dire the witness.
During that voir dire questioning, Wysocki testified that
he believed the “technique” used by Ichtertz during Slater’s
surgery was inappropriate, due to “the degree of force that
was imparted” by Ichtertz on Slater’s ulnar nerve using the
instrument. Ichtertz then asked Wysocki the following series
of questions:
Q Have you in connection with this case reviewed any
literature regarding the tensile strength of the ulnar nerve?
A No.
Q Have you conducted any independent study of the
tensile strength of an ulnar nerve?
A No.
Q Have you calculated how much force is required to
break a single fascicle of an ulnar nerve?
A No.
Q Have you reviewed any literature regarding the
degree to which the tensile strength of an ulnar nerve is
reduced in a patient with diabetes severe enough to cause
diabetic neuropathy?
A No.
. . . .
Q And you didn’t calculate the amount of force it
would take to break a single fascicle of . . . Slater’s ulnar
nerve given his diabetic status, did you?
A No.
After this voir dire examination, Ichtertz objected to any
further standard of care testimony by Wysocki, arguing that
such 	testimony 	lacked 	necessary 	foundation. 	During 	the
remainder of Wysocki’s video deposition, Ichtertz renewed
his foundational objection in response to some, but not all, of
Wysocki’s testimony.

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Nebraska Supreme Court Advance Sheets
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SLATER v. ICHTERTZ
Cite as 320 Neb. 159
After Wysocki’s video deposition was completed, the tran-
script was submitted to the district court for pretrial rulings on
various objections. Many of Ichtertz’ foundational objections
were sustained, and the court directed that specific portions of
Wysocki’s opinion testimony be stricken. Among the stricken
testimony was Wysocki’s opinion that Ichtertz’ conduct
fell below the standard of care because there was a
significant amount of force imparted to the ulnar nerve
that then led to severe dysfunction of the ulnar nerve
after surgery [and] this falls outside of the standard of
care because . . . it’s a top priority of a surgeon when
they’re doing this operation, first and foremost, to
attempt to do no harm and preserve the competency of
the ulnar nerve.
. . . .
And in this case, there was enough force imparted
on the nerve that . . . it was injured, and I think this, if
you look at the existing literature, is a very uncommon
circumstance and one that should be avoided.
The Slaters filed a motion to reconsider the rulings that
struck portions of Wysocki’s opinion testimony, which the
court overruled. The Slaters redacted Wysocki’s video deposi-
tion to reflect the court’s rulings and made an offer of proof at
trial that included the unredacted testimony.
On the second day of trial, Ichtertz made an oral motion,
outside the presence of the jury, to strike additional por-
tions of Wysocki’s video deposition testimony based on the
court’s prior rulings. The Slaters objected to that motion on
several grounds, including that the request was untimely
under the court’s progression order. The court granted the
motion in part and overruled it in part, and directed that
additional portions of Wysocki’s testimony be stricken for
lack of foundation.
Wysocki’s redacted video deposition was played for the
jury during the Slaters’ case in chief, and relevant details

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SLATER v. ICHTERTZ
Cite as 320 Neb. 159
about that testimony will be provided later in this opinion
when discussing whether the evidence was sufficient to sur-
vive directed verdict.
4. Jury Trial and Directed Verdict
The Slaters presented their case in chief over the course of
3 days. Multiple exhibits were offered and received, including
records of the cubital tunnel release surgery and the medical
treatment Slater received thereafter to address his ulnar nerve
complaints. Wysocki’s video deposition was played for the jury,
and the Slaters called several witnesses, including Ichtertz,
Slater, and Slater’s physical therapist. Relevant aspects of this
testimony will be detailed later in the analysis.
After the Slaters rested their case in chief, Ichtertz moved
for a directed verdict on all claims. Outside the jury’s pres-
ence, Ichtertz argued that because much of Wysocki’s opinion
testimony had been stricken for lack of foundation, there was
insufficient evidence adduced to establish a prima facie claim
of medical malpractice. Ichtertz specifically argued (1) there
was insufficient evidence to establish the applicable standard
of care, (2) there was no “colorable opinion” that Ichtertz
breached the applicable standard, and (3) there was “literally
no testimony on the issue of causation from anyone that we
have seen testify in this case so far.” Ichtertz also argued there
had been no evidence adduced to support a derivative claim
by Slater’s wife.
In opposing the motion, the Slaters argued that the evi-
dence was sufficient to survive a directed verdict under two
legal theories. First, they argued the unstricken portions of
Wysocki’s deposition testimony, along with Ichtertz’ trial
testimony, provided sufficient evidence to prove the ele-
ments of a traditional medical malpractice claim, including
evidence of the applicable standard of care, evidence that
Ichtertz breached that standard, and evidence that Slater’s
nerve injuries were caused by the breach. Additionally, they

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argued that even if the court believed the evidence of standard
of care, breach, and causation was lacking, the evidence was
nevertheless sufficient to support an inference of negligence
under the theory of res ipsa loquitur. The Slaters did not, how-
ever, strenuously oppose dismissal of any derivative claim on
behalf of Slater’s wife, conceding that the operative complaint
had not alleged loss of consortium.
After considering the parties’ arguments, the district court
ruled from the bench, directing a verdict in favor of Ichtertz
on all claims. Addressing the claim of medical malpractice,
the court agreed with Ichtertz that “the evidence relating to the
standard of care [and breach] was lacking as a matter of law.”
It also agreed “there was a complete absence of evidence relat-
ing to causation from any expert.” It therefore concluded the
Slaters’ evidence was insufficient as a matter of law to estab-
lish a prima facie claim of medical negligence.
The district court also found the evidence was insufficient
to support an inference of negligence under a res ipsa loquitur
theory. It reasoned, in part, that the elements of res ipsa loqui-
tur could not be satisfied because both Wysocki and Ichtertz
testified it was possible for an ulnar nerve injury to occur in
the absence of negligence. It also concluded that the evidence
did not fit into any of the situations under which this court has
allowed the res ipsa loquitur doctrine to be used in a medical
malpractice case. 1
Finally, the court concluded that although Slater’s wife
was named as a plaintiff in the operative complaint, no sepa-
rate claim had been alleged or proved on her behalf, so it
1 See, Evans v. Freedom Healthcare, 311 Neb. 336, 972 N.W.2d 75 (2022)
(holding medical malpractice claims may be brought under res ipsa
loquitur in three situations: (1) when act causing injury is so palpably
negligent that negligence may be inferred as matter of law, (2) when
general experience and observation of mankind teaches that result would
not be expected without negligence, and (3) when proof by experts in
esoteric field creates inference that negligence caused injuries); Keys v.
Guthmann, 267 Neb. 649, 676 N.W.2d 354 (2004) (same).

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directed a verdict in favor of Ichtertz as against Slater’s wife.
The Slaters did not assign error to this aspect of the directed
verdict ruling, and we do not address it further. 2
In 	a 	signed 	and 	dated 	judgment 	styled 	as 	a 	journal
entry, the trial court memorialized its oral rulings on the
motion for directed verdict and entered judgment in favor
of Ichtertz and against the Slaters on all claims. The Slaters
filed this timely appeal, which we moved to our docket on
our own motion.
II. ASSIGNMENTS OF ERROR
The Slaters identify nine assignments of error on appeal that
we consolidate and restate into four: The district court erred
in (1) granting a directed verdict, (2) denying the motion for
leave to allow witness testimony by videoconference, (3) strik-
ing portions of Wysocki’s opinion testimony based on a lack
of foundation, and (4) sustaining foundational objections to
certain portions of the physical therapist’s trial testimony.
III. STANDARD OF REVIEW
[1] Appellate review of a ruling on a motion for directed
verdict is de novo on the record. 3
[2] An appellate court reviews de novo whether the trial
court applied the correct legal standards for admitting an
2 See Konecne v. Abram, LLC, 319 Neb. 966, ___ N.W.3d ___ (2025)
(holding alleged error must be both specifically assigned and specifically
argued to be considered by appellate court).
3 Khaitov v. Greater Omaha Packing Co., 319 Neb. 932, 25 N.W.3d 739
(2025). See State v. Bruna, 12 Neb. App. 798, 829, 686 N.W.2d 590, 615
(2004) (“[w]hether a trial court should have granted a motion for directed
verdict at the close of the State’s case is a question of law, regarding
which an appellate court must reach a conclusion independent of the
determination reached by the court below”). Accord 132 Ventures v. Active
Spine Physical Therapy, 318 Neb. 64, 13 N.W.3d 441 (2024) (holding
appellate review of ruling on motion for judgment notwithstanding verdict
is de novo on record).

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expert’s testimony, and an appellate court reviews for abuse of
discretion how the trial court applied the appropriate standards
in deciding whether to admit or exclude an expert’s testimo-
ny. 4 An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. 5
[3] It is within the trial court’s discretion to determine
whether there is sufficient foundation for an expert witness to
give his or her opinion about an issue in question. 6 An appel-
late court reviews the trial court’s conclusions with regard to
evidentiary foundation for an abuse of discretion. 7
[4] A trial judge has broad discretion over the conduct of a
trial, and, absent abuse, that discretion should be respected. 8
IV. ANALYSIS
1. Trial Court Erred in Granting
Directed Verdict
[5-8] In a civil case, a directed verdict is proper only when
reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be
decided as a matter of law. 9 We have often explained:
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
4 Konsul v. Asensio, 316 Neb. 874, 7 N.W.3d 619 (2024). See, State v.
Lewis, 319 Neb. 847, 25 N.W.3d 421 (2025); State v. Woolridge-Jones,
316 Neb. 500, 5 N.W.3d 426 (2024).
5 Konsul, supra note 4.
6 Stukenholtz v. Brown, 267 Neb. 986, 679 N.W.2d 222 (2004).
7 In re Interest of Kane L. & Carter L., 299 Neb. 834, 910 N.W.2d 789
(2018).
8 Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009).
9 See, Konsul, supra note 4; Cohan v. Medical Imaging Consultants, 297
Neb. 111, 900 N.W.2d 732 (2017), modified on denial of rehearing 297
Neb. 568, 902 N.W.2d 98.

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submitted on behalf of the party against whom the
motion is directed; such being the case, the party against
whom the motion is directed is entitled to have every
controverted fact resolved in its favor and to have the
benefit of every inference which can reasonably be
deduced from the evidence. 10
It is well settled that if there is “any evidence” which will
sustain a finding for the party against whom the motion for
directed verdict is made, the case may not be decided as a
matter of law. 11 Stated differently, “if reasonable jurors could
find facts that would allow the nonmoving party to prevail, a
directed verdict should not be granted.” 12
With this standard in mind, we focus our de novo review
on whether there was any competent evidence adduced at trial
that would allow a reasonable jury to find the Slaters proved
a medical malpractice claim against Ichtertz. The Slaters
argue their evidence was sufficient to survive a directed
verdict both under a traditional medical malpractice theory
and under the doctrine of res ipsa loquitur. We consider each
theory in turn.
(a) Medical Malpractice Theory
[9,10] To establish a prima facie case of medical mal-
practice, a plaintiff must show (1) the applicable standard of
care, (2) that the defendant(s) deviated from that standard
of care, and (3) that this deviation was the proximate cause of
10 Bruce Lavalleur, P.C. v. Guarantee Group, 314 Neb. 698, 704, 992 N.W.2d
736, 741 (2023). Accord Anderson v. Babbe, 304 Neb. 186, 933 N.W.2d
813 (2019). See, Aon Consulting v. Midlands Fin. Benefits, 275 Neb. 642,
748 N.W.2d 626 (2008); Jackson v. Brotherhood’s Relief & Comp. Fund,
273 Neb. 1013, 734 N.W.2d 739 (2007); Billingsley v. BFM Liquor Mgmt.,
264 Neb. 56, 645 N.W.2d 791 (2002).
11 Aon Consulting, supra note 10, 275 Neb. at 650, 748 N.W.2d at 636.
Accord, Jackson, supra note 10; Billingsley, supra note 10.
12 Bruce Lavalleur, P.C., supra note 10, 314 Neb. at 704, 992 N.W.2d at 741
(emphasis in original).

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the plaintiff’s harm. 13 Generally, expert testimony is required to
establish each of these elements. 14
In this case, the trial court found that the expert testimony
adduced during the Slaters’ case in chief was insufficient,
as a matter of law, to establish any of the three elements of
a medical malpractice claim. After reviewing the record de
novo, we cannot agree. In the sections that follow, we sum-
marize the expert testimony adduced regarding standard of
care, breach of that standard, and causation. In doing so, we
assume the truth of all competent evidence adduced on behalf
of the Slaters, give them the benefit of every reasonable infer-
ence from that evidence, and resolve every controverted fact
in their favor.
(i) Standard of Care
[11] Neb. Rev. Stat. § 44-2810 (Reissue 2021) defines the
general standard of care in medical malpractice cases as “the
ordinary and reasonable care, skill, and knowledge ordinarily
possessed and used under like circumstances by members of
his profession engaged in a similar practice in his or in simi-
lar localities” and provides that to determine what constitutes
such ordinary and reasonable care, skill, and diligence in a
particular case, the test is that “which health care provid-
ers, in the same community or in similar communities and
engaged in the same or similar lines of work, would ordinar-
ily exercise and devote to the benefit of their patients under
like circumstances.”
Our de novo review of the record reveals competent medi-
cal evidence regarding the applicable standard of care in the
testimony of both Wysocki and Ichtertz. For example, in
13 Konsul, supra note 4; Carson v. Steinke, 314 Neb. 140, 989 N.W.2d 401
(2023).
14 Evans, supra note 1, 311 Neb. at 345, 972 N.W.2d at 83 (“[i]n medical
malpractice cases, expert testimony by a medical professional is normally
required to establish the standard of care and causation under the
circumstances”). See Konsul, supra note 4.

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the unredacted portions of Wysocki’s video deposition, he
testified about the applicable standard of care when perform-
ing endoscopic cubital tunnel release surgery, stating that “I
believe that the standard of care . . . is to not impart a struc-
tural injury to the ulnar nerve where you cause marked dys-
function of the ulnar nerve due to your own actions, your own
instrumentation and your own handling of the nerve during
the procedure.” Elaborating on this standard, Wysocki testi-
fied that when performing surgeries around the ulnar nerve,
the goal, “first and foremost,” is “always keeping [the nerve]
protected from iatrogenic injury, meaning being injured during
the procedure itself. . . . [N]o matter what you’re doing around
the ulnar nerve, keeping it protected from iatrogenic injury
during surgery is critical.” Wysocki explained that “since the
surgeon knows that [the] first and foremost goal is don’t injure
the nerve, it means that the surgeon is very cautious on the
amount of pressure they’re applying and the feel of the pro-
cess while they’re performing the surgery.”
When asked, “[H]ow much pressure is appropriate during
an endoscopic cubital tunnel release?” Wysocki replied, “A
light amount based on feel.” He testified that when placing an
instrument during an endoscopic-assisted cubital tunnel release
surgery, it would be “within the standard of care” to “apply
gentle pressure to place” the instrument, but it “would not
be appropriate to be forceful and aggressive to the point you
cause a severe nerve injury.”
Wysocki testified that to determine the applicable stan-
dard of care for endoscopic cubital tunnel release surgeries
in Nebraska, he relied on his own training and experience,
reviewed all of Slater’s medical records and diagnostic stud-
ies, reviewed the pertinent literature and peer review journals,
reviewed the expert depositions and reports in this case, and
spoke with medical professionals in Nebraska who specialize
in the hand and upper extremity.
When Ichtertz was called to testify in the Slaters’ case in
chief, he too testified about the applicable standard of care.

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He was asked: “What was the medical standard of care for a
cubital tunnel release in central Nebraska in August 2017?”
He replied, “The standard of care is to go in and carefully
release the ulnar nerve.” Ichtertz agreed that one of the “most
significant” things when performing a cubital tunnel release
is to avoid damaging or harming the ulnar nerve. When asked
how a surgeon knows “how hard to push in an endoscopic
cubital tunnel release procedure,” Ichtertz responded this
was something learned “by experience.” Finally, Ichtertz was
asked whether a different standard of care applied to per-
forming an endoscopic cubital tunnel release on patients with
diabetes, and he replied, “Not that I am aware of. Should be
the same.”
This trial testimony from both Wysocki and Ichtertz, which
must be accepted as true given the stage of the proceedings,
was sufficient to allow a reasonable jury to conclude the
Slaters proved that when performing an endoscopic cubital
tunnel release surgery, the applicable standard of care requires
handling the surgical instruments in a way that protects
the ulnar nerve from iatrogenic injury, being cautious about
the amount of pressure being applied when positioning the
instruments, using a gentle or light amount of pressure based
on feel, and avoiding the use of forceful or aggressive pres-
sure that could injure the ulnar nerve. On this record, the trial
court erred in concluding that the Slaters adduced no compe-
tent evidence of the applicable standard of care.
(ii) Breach
In the unredacted portions of Wysocki’s video deposition,
he testified about the ways in which Ichtertz breached the
applicable standard of care. When asked what Ichtertz did
“incorrectly” during the endoscopic cubital tunnel release pro-
cedure, Wysocki replied, “[I]t appear[s] that he imparted an
amount of force directly to the ulnar nerve using the surgi-
cal instrumentation that caused a severe ulnar nerve injury.”
Similarly, when asked if there was anything “inappropriate”

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in the technique Ichtertz used, Wysocki replied that it was
inappropriate for Ichtertz to impart a “degree of force . . . that
damaged the ulnar nerve.”
Ichtertz’ own trial testimony also provided evidence to sup-
port a finding that he breached the applicable standard of care
regarding the amount of pressure he applied to the ulnar nerve
when attempting to position the guide. At one point in the
questioning, the following exchange occurred:
Q Were you trying to overcome the resistance that the
fascia was providing?
A Well, I am sure I was to some degree.
Q In doing that, do you think you pushed too hard to
overcome that resistance?
A Given the outcome of this case or the surgery, I will
say, yes, but at the time, I was not applying, you know,
much force. It’s a gentle force.
Q Is your testimony — in hindsight, now that you
know what you know, do you agree that you were pushing
too hard at that time?
A Most likely.
Q Was it right to push too hard?
A These are judgment calls. I believe [that] too hard
is a post facto thing. . . . Very gentle use of the tools.
At the same time, it’s working on a person whose nerves
aren’t in real good shape. You know, it’s a judgment
thing. In this case, it didn’t quite work out the way it
should have.
When the Slaters’ counsel pointed out that Ichtertz testified
he was putting “delicate pressure” on the instrument but that
he also testified that he “pushed too hard,” Ichtertz replied,
“I am making a supposition [I] must have pushed too hard.
Otherwise, I would not have anticipated any damage at all .
. . .” When asked, “Do you know how much pressure is too
much pressure on the ulnar nerve?” Ichtertz replied, “No, I
don’t.” He was then asked, “Has there ever been any testing

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done on the human ulnar nerve to determine how much pres-
sure it can take?” He answered, “No.”
On cross-examination, Ichtertz agreed that, in retrospect,
“the amount of pressure placed on the nerve was more than it
could tolerate,” but he added that by saying he “push[ed] too
hard,” he did not mean that his technique breached the stan-
dard of care. Indeed, it was Ichtertz’ testimony that he used
only gentle pressure when positioning the guide and therefore
met the standard of care.
We acknowledge that the evidence adduced during the
Slaters’ case in chief was controverted as it regards breach-
ing the applicable standard of care. But courts considering
motions for directed verdicts are required to 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,
and in doing so, courts must resolve all controverted facts in
favor of that party and give them the benefit of every infer-
ence reasonably deduced from the evidence. 15 Applying that
standard to the evidence adduced during the Slaters’ case in
chief, we conclude the medical testimony from both Wysocki
and Ichtertz was sufficient to allow a reasonable jury to find
that Ichtertz breached the applicable standard of care by
applying an excessive amount of force to the ulnar nerve while
positioning the instrument. To the extent the district court con-
cluded there was no evidence of breach, it erred.
(iii) Causation
[12] In the medical malpractice context, the element of
proximate causation requires proof that “the physician’s devia-
tion from the standard of care caused or contributed to the
injury or damage to the plaintiff.” 16 In the unredacted portions
of Wysocki’s video deposition, he testified that Slater’s ulnar
nerve injury was caused by Ichtertz’ applying too much force
while positioning the guide during the endoscopic cubital
15 See Bruce Lavalleur, P.C., supra note 10; Anderson, supra note 10.
16 Cohan, supra note 9, 297 Neb. at 127, 900 N.W.2d at 743.

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tunnel release procedure. Wysocki was asked directly: “Was
. . . Slater’s ulnar nerve injured in this procedure?” Wysocki
replied, “Yes, it was.” Wysocki testified that after the surgery,
Slater had “severe dysfunction” of his ulnar nerve that “he did
not have prior to his surgery,” and he testified that “the cause
of that problem was the intraoperative effects that . . . Ichtertz
supplied to the nerve.”
In Ichtertz’ trial testimony, he made several admissions
regarding causation. He was asked, “You take full responsi-
bility for the injury to . . . Slater’s ulnar nerve, don’t you?”
He answered, “Yes, I do.” And when asked if he thought
that Slater’s ulnar nerve was severed during the “few sec-
onds” that Ichtertz encountered resistance and “struggled” to
advance the cutting guide, Ichtertz said, “Yes, I think so.” In
followup questioning, he was asked, “Is that also when any
other injuries to . . . Slater’s ulnar nerve would have occurred
from the device that you were using?” He replied, “Yes.”
Ichtertz was asked, “Do you believe that it was the instrument
that caused the cut to the fascicle when you were pushing
against the nerve?” He answered, “Ultimately, yes.” He was
then asked, “The only way that instrument can put pressure
on the nerve is if your hand is providing 100 percent of the
pressure, correct?” He stated, “That’s correct.”
Later 	in 	Ichtertz’ 	testimony, 	the 	following 	evidence
was adduced:
Q Was it obvious to you during the procedure that
. . . Slater’s nerve was going to suffer a little bit of a
contusion?
A Well, I felt it probably would, yes.
Q Is contusion another word for bruise?
A Yes, it is.
Q What made you feel that it was going to suffer a
little bit of a contusion or bruise?
A Because when I realized that the instrument had
been pushing on the nerve and that a fascic[le] had
ruptured or had been cut by the end of the instrument,

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it just makes sense that the nerve was going to have a
problem from that.
According to Ichtertz, the injury to Slater’s ulnar nerve resulted
in “two kinds of symptoms, sensory and motor.” Ichtertz
agreed that if the only injury to Slater’s ulnar nerve had been
a cut fascicle, he “would expect a very limited sensory or very
limited motor problem.” But since Slater had both sensory
and motor symptoms relating to his ulnar nerve, it was “fair
to expect that there was an injury to more than one fascicle
in . . . Slater’s nerve.” Indeed, Ichtertz testified that after the
surgery, he was “more concerned about the pressure that had
been applied to the nerve when it got in front of the guide
as opposed to a transected fascicle,” because pressure on the
nerve “would potentially encompass a lot more nerve fibers in
the area.” Finally, Ichtertz agreed that “the injury to . . . Slater’s
nerve has caused palsy, wasting, numbness, [and] tingling.”
Accepting this evidence as true, resolving every contro-
verted fact in the Slaters’ favor, and giving them the benefit of
all reasonable inferences, we conclude the Slaters adduced suf-
ficient evidence to allow a reasonable jury to find that causa-
tion was established. On this record, the district court erred in
concluding “there was a complete absence of evidence relating
to causation from any expert.”
We acknowledge it is possible that the district court was lis-
tening for causation testimony couched in the familiar language
of “reasonable medical certainty” and that, hearing no such lan-
guage, the court agreed with Ichtertz that no competent causa-
tion testimony had been adduced. But expert medical testimony
on causation need not be couched in the magic words of “‘rea-
sonable medical certainty’” or “‘reasonable probability.’” 17
17 See Carson, supra note 13, 314 Neb. at 163, 989 N.W.2d at 418. Accord
Paulsen v. State, 249 Neb. 112, 121, 541 N.W.2d 636, 643 (1996) (noting
sufficiency of expert opinions must 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’”).

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Instead, such testimony must be sufficient, when examined
in its entirety, to establish the crucial causal link between the
plaintiff’s injuries and the defendant’s negligence. 18 Medical
testimony that is “couched in terms of ‘possibility’ is insuf-
ficient to support a causal relationship.” 19 But when medical
testimony regarding causation is “given in terms that express
a probability,” 20 it is sufficiently definite. Our cases discuss-
ing the sufficiency of expert opinions in medical malpractice
cases demonstrate that equivocal words like “could,” “may,”
or “possibly” generally lack the definiteness required to prove
causation. 21 But the causation testimony quoted above was not
couched in equivocal terms.
Although 	the 	causation 	testimony 	from 	Wysocki 	and
Ichtertz did not expressly reference “reasonable medical prob-
ability,” it was nevertheless couched in terms that were suffi-
ciently definite. Neither physician testified that it was merely
“possible” that Slater’s ulnar nerve injury was caused by the
amount of pressure exerted during the endoscopic-assisted
18 Carson, supra note 13. See, also, Morton v. Hunt Transp., 240 Neb.
63, 66, 480 N.W.2d 217, 220 (1992) (noting sufficiency of medical
expert’s causation opinion “‘is judged in the context of the expert’s entire
statement’”).
19 Steineke v. Share Health Plan of Neb., 246 Neb. 374, 379, 518 N.W.2d
904, 907 (1994).
20 Rankin v. Stetson, 275 Neb. 775, 787, 749 N.W.2d 460, 469 (2008).
21 Compare Carson, supra note 13, 314 Neb. at 164, 989 N.W.2d at
419 (finding expert medical testimony that “‘there could have been a
significantly bad outcome’” from puncture of amniotic sac was insufficient
to support causation because testimony used “language of possibility,
not probability”), with Rankin, supra note 20 (finding expert medical
testimony that early surgical decompression to relieve spinal cord pressure
would more likely than not have led to fewer neurological deficits was
sufficient to establish causation). See, also, Miner v. Robertson Home
Furnishing, 239 Neb. 525, 476 N.W.2d 854 (1991) (holding medical
testimony expressed in terms of “possibly” was not sufficient to prove
causation but testimony couched in terms of “probability” was sufficient).

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cubital tunnel release procedure. Instead, both physicians
testified that Slater’s ulnar nerve injury was caused when
pressure was applied to the ulnar nerve while Ichtertz was
positioning the guide instrument during the endoscopic cubital
tunnel release procedure.
(iv) Summary of Medical
Malpractice Theory
Our de novo review reveals that the Slaters adduced suf-
ficient evidence during their case in chief to establish a prima
facie case of medical malpractice. Because this evidence could
allow reasonable jurors to find facts establishing the standard
of care, breach of that standard, and causation, it was error
to grant a directed verdict in favor of Ichtertz on the Slaters’
medical malpractice theory.
(b) Res Ipsa Loquitur Theory
The Slaters contend they “had two evidentiary avenues to
prove medical malpractice, and res ipsa loquitur was one of
them.” 22 They argue that based on the evidence adduced dur-
ing their case in chief and our reasoning in Evans v. Freedom
Healthcare, 23 their malpractice claim against Ichtertz should
have survived a directed verdict based not only on evidence
that Slater’s ulnar nerve injury was caused by specific acts of
negligence, but also based on evidence that would permit an
inference of negligence under the doctrine of res ipsa loquitur.
[13,14] Res ipsa loquitur is an exception to the general rule
that negligence cannot be inferred. 24 More specifically, it is
a procedural tool that, if applicable, allows an inference of a
defendant’s negligence to be submitted to the fact finder, where
22 Brief for appellants at 30.
23 Evans, supra note 1.
24 See McLaughlin Freight Lines v. Gentrup, 281 Neb. 725, 798 N.W.2d 386
(2011). See, also, Benedict v. Eppley Hotel Co., 161 Neb. 280, 73 N.W.2d
228 (1955).

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it may be accepted or rejected. 25 We have described res ipsa
loquitur as a rule of evidence, not a rule of substantive law. 26
[15] Our cases describe several situations under which the
theory of res ipsa loquitur may generally be relied upon in a
medical malpractice case: (1) when the act causing the injury
is so palpably negligent that it may be inferred as a matter of
law, i.e., leaving foreign objects, sponges, scissors, et cetera,
in the body, or amputation of a wrong member; (2) when the
general experience and observation of mankind teaches that the
result would not be expected without negligence; and (3) when
proof by experts in an esoteric field creates an inference that
negligence caused the injuries. 27
[16-19] When a medical malpractice case falls into one of
the described situations, there are three elements that must
be satisfied for the theory of res ipsa loquitur to apply: (1)
the occurrence must be one which would not, in the ordinary
course of things, happen in the absence of negligence; (2)
the instrumentality which produces the occurrence must be
under the exclusive control and management of the alleged
wrongdoer; and (3) there must be an absence of explanation
by the alleged wrongdoer. 28 When these three elements have
been met and the doctrine is applicable, the essence of the
25 Evans, supra note 1. Accord Anderson v. Service Merchandise Co., 240
Neb. 873, 881, 485 N.W.2d 170, 176 (1992) (noting when res ipsa
loquitur applies, evidence is sufficient to go to jury, but “‘[t]he inference
of negligence to be drawn from the circumstances is left to the jury’” and
jurors “‘are permitted, but not compelled to find it’”).
26 Evans, supra note 1.
27 Id.; Keys, supra note 1.
28 Evans, supra note 1. Accord Darrah v. Bryan Memorial Hosp., 253 Neb.
710, 571 N.W.2d 783 (1998) (to trigger application of res ipsa loquitur
in medical malpractice case, instrumentality that caused injury must be
under exclusive control of defendant, injury must be one that would not
ordinarily occur absent negligence, and defendant cannot have explanation
that precludes liability).

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doctrine is that an inference of negligence arises without fur-
ther proof. 29 In other words, the doctrine allows an inference
of a defendant’s negligence to be submitted to the fact finder,
where it may be accepted or rejected. 30 Res ipsa loquitur
allows the inference of the defendant’s negligence because
the inference “‘is probable and more plausible than any other
explanation propounded,’” and therefore, “‘[t]he plaintiff need
not establish the exact manner in which he was injured, or the
precise act or event which precipitated his injury.’” 31
[20,21] To decide if the doctrine of res ipsa loquitur applies,
“a court must determine whether evidence exists from which
reasonable persons can say that it is more likely than not that
the three elements of res ipsa loquitur have been met.” 32 If
such evidence is presented, then there exists an inference of
negligence which presents a question of material fact for the
jury. 33 We have cautioned that this judicial inquiry does not
involve weighing the evidence:
The court should not weigh the evidence to determine
whether res ipsa loquitur applies. Instead, the court must
determine whether there is sufficient evidence from which
reasonable persons could find that it is more likely than
not that the three elements of res ipsa loquitur have been
proved and that it is therefore more likely than not that
there was negligence associated with the event. 34
In the sections that follow, we review the record de
novo to determine whether the evidence adduced during the
Slaters’ case in chief was sufficient to allow a reasonable
jury to find by a preponderance of the evidence that all three
29 Evans, supra note 1.
30 Id.
31 Swierczek v. Lynch, 237 Neb. 469, 477, 466 N.W.2d 512, 517 (1991).
32 McLaughlin Freight Lines, supra note 24, 281 Neb. at 728-29, 798 N.W.2d
at 389-90.
33 See McLaughlin Freight Lines, supra note 24.
34 Id. at 729, 798 N.W.2d at 390.

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elements of res ipsa loquitur had been proved. We consider
each element in turn, and ultimately conclude the evidence,
at least as it existed at the close of the Slaters’ case in chief,
was sufficient to survive a directed verdict.
Before doing so, however, we briefly note the district court
appears to have concluded that this medical malpractice case
does not fall within any of the recognized situations where
plaintiffs have been allowed to proceed under a res ipsa loqui-
tur theory. We respectfully disagree. Because this record con-
tains medical testimony on each of the three res ipsa elements,
the case falls squarely within the third category of medical
malpractice cases, “when proof by experts in an esoteric field
creates an inference that negligence caused the injuries.” 35
(i) Injury Would Not Ordinarily
Occur Absent Negligence
We focus first on whether there was sufficient medical
testimony to prove that the injury to Slater’s ulnar nerve
was an occurrence that would not, in the ordinary course of
things, happen in the absence of negligence. We begin by
summarizing the evidence describing the nature of the inju-
ries to Slater’s ulnar nerve, after which we summarize the
evidence about whether such injuries are the type that ordi-
narily occur in cubital tunnel release surgeries in the absence
of negligence.
The medical testimony generally described the injuries to
Slater’s ulnar nerve to include a complete transection of a
single fascicle, as well as bruising and stretching of the nerve
when it got “bunched up” on the blunt end of the cutting
guide. Regarding transection of the nerve, the following medi-
cal testimony was adduced from Wysocki:
Q Based on your training, experience, and the research
you have done in this case, how many times have you
35 Evans, supra note 1, 311 Neb. at 347, 972 N.W.2d at 84. See Keys, supra
note 1.

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come across a case in which a patient has experienced a
partially or fully transected ulnar nerve during a cubital
tunnel release procedure?
A Zero outside of this one.
. . . .
Q Based on your knowledge, how common or rare
is a transection, partial or full, of an ulnar nerve in an
endoscopic cubital tunnel release procedure?
. . . .
A Exceedingly rare.
Wysocki was then asked whether the transection of Slater’s
ulnar nerve was “preventable in this case,” and he testified
that he was “[c]ertain” the injury could have been prevented.
The jury was not allowed to hear Wysocki’s explanation for
how the injury could have been prevented, because it was
part of the testimony stricken by the trial court for lack of
foundation. But a reasonable inference from the unredacted
portions of Wysocki’s testimony is that Slater’s ulnar nerve
would not have been transected, or cut, by the blunt end
of the guide instrument if Ichtertz had applied only gentle
pressure, rather than excessive pressure, when positioning
the instrument.
On cross-examination, Wysocki was asked, “So can you
have an ulnar nerve laceration without negligence on the part
of the surgeon?” and Wysocki answered, “I think in very rare
circumstances, you can have an ulnar nerve laceration with-
out negligence.” On redirect, Wysocki was asked whether
any of those circumstances were present in Slater’s case,
and he replied, “No, they were not.” Wysocki was asked
to give an example of a circumstance under which an ulnar
nerve might be lacerated during an endoscopic cubital tunnel
release without the surgeon being negligent. He said a prin-
cipal example of a nerve transection that would not fall out-
side the standard of care is where the ulnar nerve had been
operated on previously and was “encased in scar tissue” such
that when attempting to dissect the nerve, the surgeon cannot

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“discern what is nerve [and] what is not” because “every-
thing looks kind of the same.” There was no evidence that
Slater’s ulnar nerve had been operated on previously, that it
was encased in scar tissue, or that it was otherwise difficult
to discern from the surrounding fascia or tissue.
Ichtertz also testified about the prevalence of ulnar nerve
transections during cubital tunnel surgery. When asked, “How
often does the ulnar nerve get cut into or cut completely
through during a cubital tunnel release surgery?” Ichtertz
replied, “I don’t know. This is the first time that I had an
injury like this occur. . . . I have done over 2,000 cubital tun-
nel surgeries. It’s not very common.” He was later asked, “If
a surgeon pushed to the point of severing a fascicle in the
ulnar nerve, would that be unusual?” and he replied, “It’s an
unusual occurrence.”
There was also medical testimony from both Wysocki and
Ichtertz about the prevalence of other types of injury to the
ulnar nerve during endoscopic cubital tunnel release surger-
ies, such as the nerve being bruised and stretched. Wysocki
agreed with the general proposition that “injury to the ulnar
nerve is a known complication of endoscopic cubital tunnel
surgery,” but he added that it is “extremely rare.” And when
Ichtertz was asked what “percentage of cubital tunnel release
surgeries have a result where the nerve is injured in the sur-
gery,” he replied, “[I]t’s not common. Probably 1 in 1,000 in
the United States.” Ichtertz generally agreed that injury to the
ulnar nerve is a “very rare” complication, adding that of all
the cubital tunnel surgeries he had performed, “I haven’t had
this before.”
Our de novo review persuades us that the medical testimony
from Wysocki and Ichtertz was sufficient, accepted as true and
giving the Slaters all reasonable inferences therefrom, to allow
a reasonable jury to find that Slater’s ulnar nerve injury was
the type of occurrence that would not, in the ordinary course
of things, happen in the absence of negligence.

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(ii) Instrumentality Which Produced Occurrence
Was Under Ichtertz’ Exclusive Control
In this case, the instrumentality that produced the occur-
rence was the cutting guide that Ichtertz used to perform
the cubital tunnel release, and the evidence was undisputed
that the instrument was under the exclusive control and
management of Ichtertz throughout the procedure. Ichtertz
was responsible for inserting the instrument and guiding the
instrument, and he alone was responsible for the amount of
pressure exerted on the instrument during Slater’s cubital
tunnel release surgery. This evidence was sufficient to satisfy
the second element of res ipsa loquitur, and Ichtertz does not
contend otherwise.
(iii) Absence of Explanation
by Alleged Wrongdoer
We turn now to the third element of res ipsa loquitur, which
requires an absence of explanation by the alleged wrongdoer.
During the Slaters’ case in chief, Ichtertz testified that he
believed the injuries to Slater’s ulnar nerve occurred when he
encountered “resistance” while positioning the cutting guide
proximally, and when he inserted the scope to see what was
causing the resistance, he discovered the ulnar nerve was
“bunched up” on the front of the cutting guide. But when
Ichtertz was asked what might have caused that to occur, he
was unsure.
He was asked whether he “pushed too hard” getting the
instrument into position, and he replied, “I am not sure that
I did. I’m pushing and the nerve somehow ended up getting
in front of the end of the instrument.” He also testified, “[T]
he nerve wasn’t supposed to be there. The guide is supposed
to be totally protecting, keeping it away.” But Ichtertz did not
claim that any sort of malfunction or defect with the guide
instrument was responsible for the nerve injury. Instead, it was
Ichtertz’ testimony that for “unclear” reasons, Slater’s “ulnar

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nerve seemed to get hooked up on the [guide] proximally after
having no problem using it distally.”
At one point in his testimony, Ichtertz suggested the ulnar
nerve may have gotten bunched up on the end of the instru-
ment, “due to some sort of subtle anatomic variation with the
ulnar nerve kinking around the end of the guide.” But when
he was asked whether this was due to “the floppiness of the
nerve,” he replied, “I am not really certain. It started catch-
ing.” It was Ichtertz’ testimony that “there had to be something
catching [but] I don’t know what it was.”
When Ichtertz was asked whether the instrument may have
gone “through the fascia and come into contact with the
nerve,” he replied, “I don’t know what exactly was going on
there,” adding “I don’t think that’s the issue.” He explained
that when he looked into the scope, the fascia was still between
the guide and the ulnar nerve.
Summarized, it was Ichtertz’ testimony that while he was
positioning the guide, Slater’s ulnar nerve “just seemed to
get drawn up,” “hooked up,” or “bunched up” on the front of
the guide, but he offered no plausible explanation as to how
or why that occurred. On this record, a reasonable jury could
find that Ichtertz failed to offer an explanation for the ulnar
nerve injury.
(iv) Summary of Res Ipsa Theory
Because we conclude the Slaters adduced sufficient evi-
dence to allow a reasonable jury to find that all three elements
of res ipsa loquitur were met, it was error for the district court
to direct a verdict on that theory as a matter of law at the close
of the Slaters’ case in chief. We must therefore reverse the
judgment in favor of Ichtertz and remand the cause to the dis-
trict court for a new trial.
2. Issues Likely to Recur on Remand
[22] Although our reversal of the directed verdict effectively
resolves this appeal, an appellate court may, at its discretion,

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discuss issues unnecessary to the disposition of an appeal
where those issues are likely to recur during further proceed-
ings. 36 In this appeal, we exercise our discretion to discuss the
remaining assignments of error that challenge several of the
trial court’s evidentiary rulings, as well as its procedural rul-
ing denying the Slaters’ motion to permit witness testimony by
videoconference, as it appears these issues are likely to recur
during retrial.
(a) Foundational Objections
to Wysocki Opinion
As stated, the trial court sustained many of Ichtertz’ founda-
tional objections made during the video deposition of Wysocki
and ordered the testimony stricken. The written order ruling
on these objections did not contain the court’s reasoning, but
the Slaters contend on appeal that the court’s rulings were
premised on Wysocki’s answers to the voir dire questioning
focused on the “tensile strength” of the ulnar nerve and how
much force it can withstand without breaking. The Slaters
describe this line of questioning as a “red herring[],” 37 and
they argue that Wysocki’s answers did not demonstrate a lack
of foundational knowledge to support his opinion that the tran-
section injury to Slater’s ulnar nerve occurred because Ichtertz
applied too much force.
Ichtertz disagrees, and he argues that the foundational objec-
tions were properly sustained. He characterizes Wysocki’s
opinions as being based on the “bald assertion that an injury
like that sustained by . . . Slater cannot occur unless too much
force is used.” 38 And we understand Ichtertz to argue that
whether Wysocki’s opinions were offered to support a tradi-
tional medical malpractice theory, or to support an inference
36 Brush & Co. v. W. O. Zangger & Son, 314 Neb. 509, 991 N.W.2d 294
(2023).
37 Brief for appellants at 16.
38 Brief for appellee at 24.

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of negligence under the theory of res ipsa loquitur, the opin-
ions lacked necessary foundation because Wysocki did not
know “[w]hat amount of force overcomes the tensile strength
of an ulnar nerve” or “[w]hat amount of force would impart
the degree of injury sustained by . . . Slater’s ulnar nerve.” 39
Because Ichtertz has not challenged the scientific methodol-
ogy or reasoning employed by Wysocki under Schafersman
v. Agland Coop, 40 we confine our analysis to whether the
trial court properly sustained the foundational objections to
Wysocki’s opinions based on a lack of sufficient knowledge
regarding the tensile strength of the ulnar nerve.
[23-25] It is the burden of the proponent of expert testi-
mony to establish the necessary foundation for its admission. 41
Expert testimony concerning the standard of care in a medical
malpractice case should not be received if it appears the wit-
ness is not in possession of such facts as will enable him or her
to express a reasonably accurate conclusion as distinguished
from a mere guess or conjecture. 42 Opinion evidence which is
unsupported by appropriate foundation is not admissible. 43
We are not persuaded by Ichtertz’ argument that Wysocki’s
response to the questions about the “tensile strength” of the
ulnar nerve demonstrated a lack of necessary foundation for
his opinions. Ichtertz’ foundational argument appears to be
premised on the assertion that there is some objective or
scientific way to measure the amount of pressure a surgeon
manually exerts when positioning the hand-held guide during
an endoscopic cubital tunnel release. But the record on appeal
does not support such an argument.
Both 	Wysocki 	and 	Ichtertz 	testified 	that 	when 	posi-
tioning the guide in an endoscopic cubital tunnel release
39 Id. at 27.
40 Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
41 Konsul, supra note 4.
42 Id.
43 Jackson, supra note 10.

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procedure, the surgeon should use an amount of pressure
described interchangeably as “light,” “delicate,” or “gentle.”
Both doctors were asked how a surgeon knows how much
pressure to use; Wysocki said it is “based on feel,” and
Ichtertz said it is something learned “by experience.” Both
denied knowledge of any scientific studies testing the tensile
strength of an ulnar nerve to determine how much pressure
it could withstand before breaking, and no such studies
were offered into evidence at trial. But even assuming such
studies exist, Ichtertz does not contend that scientific data
measuring tensile strength is widely known or accepted in
the relevant medical community, nor does he suggest that
surgeons in the relevant medical community rely on tensile
strength studies to decide how much pressure to use when
manually positioning surgical instruments during a cubital
tunnel release procedure.
[26] Triers of fact are not required to take opinions of
experts as binding upon them, and determining the weight to
be given expert testimony is uniquely the province of the fact
finder. 44 Although Wysocki’s answers to questions about ten-
sile strength studies may affect the weight a jury gives to his
opinions, his answers did not demonstrate a lack of necessary
foundation for his opinions. On this record, we conclude it was
an abuse of discretion to sustain the foundational objections to
Wysocki’s opinions based on his admitted unfamiliarity with
scientific studies measuring tensile strength.
(b) Objections to Physical Therapist Opinion
At trial, the Slaters called physical therapist Sean Vonderfecht
to testify about the results of a functional capacity evaluation
that he performed on Slater’s left upper extremity. Vonderfecht
also intended to offer his opinion that Slater had a 48-per-
cent impairment to the left upper extremity, due to sensation
44 SID No. 596 v. THG Development, 315 Neb. 926, 2 N.W.3d 602 (2024).

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and motor loss related to his ulnar nerve injury. But before
Vonderfecht offered his opinion on Slater’s impairment rating,
Ichtertz’ counsel was permitted to voir dire the witness.
During the voir dire examination, Vonderfecht testified that
he calculated the impairment rating by using data from the func-
tional capacity evaluation that he performed and by referencing
guidelines contained in a publication of the American Medical
Association. Vonderfecht agreed that, according to that publi-
cation, permanent impairment evaluations must be “performed
by a licensed physician” and that “a medical evaluation is the
basis for the determination of permanent impairment of the
upper extremities.” Vonderfecht also admitted that, according
to the publication, he was “not qualified to perform an impair-
ment rating” or to conduct a “medical evaluation” because he
was a physical therapist and not a licensed physician.
After 	this 	line 	of 	questioning, 	Ichtertz 	objected 	to
Vonderfecht’s impairment rating opinion on the grounds that
it lacked foundation and that Vonderfecht was not sufficiently
qualified to testify as an expert on the issue under Neb. Rev.
Stat. § 27-702 (Reissue 2016). The court sustained the objec-
tion on both grounds. Vonderfecht was thereafter permitted
to testify as an expert regarding the results of the functional
capacity evaluation he performed but was not permitted to tes-
tify about any impairment rating.
On appeal, the Slaters contend this was an abuse of discre-
tion. They argue broadly that physical therapists are regularly
allowed to offer expert opinions based on their knowledge,
skill, experience, and training, and they cite McDonald v.
Miller 45 as an example of this. In that case, we held that a
physical therapist was qualified under § 27-702 to offer an
expert opinion that the plaintiff would aggravate her injuries
if she sat for an extended period of time. But the Slaters do
not explain how McDonald has any relevance here, particu-
45 McDonald v. Miller, 246 Neb. 144, 518 N.W.2d 80 (1994).

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larly since Vonderfecht expressly admitted that, as a physi-
cal therapist, he was not qualified to offer an opinion on
Slater’s impairment rating according to the publication on
which he relied.
Because Vonderfecht admitted that he was not qualified to
testify about permanent impairment ratings, we see no abuse
of discretion in the court’s decision to sustain the objection
to Vonderfecht’s opinion on that basis. Given the limitations
imposed by the evidence, this record does not afford a mean-
ingful opportunity to address the circumstances, if any, under
which a physical therapist might be qualified to offer an opin-
ion on a permanent impairment rating, and we leave that issue
for another day.
(c) Motion to Allow Witness Testimony by
Videoconference Under § 24-734(5)
As noted, the Slaters filed a pretrial motion broadly ask-
ing that trial witnesses be allowed to testify by videoconfer-
ence pursuant to § 24-734(5). Subsection (5) of § 24-734
was adopted by the Legislature in 2020 46 and provides in
relevant part:
(5)(a) Unless an objection under subdivision (5)(c) of
this section is sustained, in any civil case, a judge shall,
for good cause shown, permit any witness who is to be
examined by oral examination to appear by telephonic,
videoconferencing, or similar methods.
(b) . . . A court may find that there is good cause to
allow the testimony of a witness to be taken by telephonic,
videoconferencing[,] or similar methods if:
(i) The witness is otherwise unavailable to appear
because of age, infirmity, or illness;
(ii) The personal appearance of the witness cannot be
secured by subpoena or other reasonable means;
46 See 2020 Neb. Laws, L.B. 912.

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(iii) A personal appearance would be an undue burden
or expense to a party or witness; or
(iv) There are any other circumstances that constitute
good cause for allowing the testimony of the witness
to 	be 	taken 	by 	telephonic, 	videoconferencing, 	or
similar methods.
(c) A party may object to examination by telephonic,
videoconferencing, or similar methods under subdivision
(5)(a) 	of 	this 	section 	on 	grounds 	of 	unreliability
or unfairness. The objecting party has the burden of
proving unreliability or unfairness by a preponderance of
the evidence.
The Slaters’ motion under § 24-734(5) did not identify any
specific witness or witnesses they wanted to testify by video-
conference; instead, during the hearing, they broadly asked
the court to permit any of the parties’ witnesses to testify by
videoconference. When the court asked whether § 24-734(5)
required more specificity, the Slaters asked the court to permit
all “out-of-state witnesses” to testify by videoconference. The
Slaters offered no evidence to support a good cause finding,
but they argued that allowing out-of-state witnesses to testify
by videoconference would give both parties more flexibility,
particularly with respect to their expert witnesses, and would
reduce the time and expense of litigation.
Ichtertz objected to allowing any witness testimony by vid-
eoconference, relying primarily on the objection provision in
§ 24-734(5)(c). In support of that objection, Ichtertz offered
the affidavit of his attorney, who expressed a preference for
in-person testimony and described technological difficulties he
encountered in the past when appearing by videoconference
for court hearings in Hall County. Ichtertz’ counsel argued
that it was “less than ideal to have a witness testify remotely”
and that it made impeachment and exhibit management more

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difficult. Counsel also argued the Slaters had not shown good
cause to allow their witnesses to testify by videoconference,
noting there was sufficient time before trial to take video depo-
sitions of any out-of-state medical experts.
The district court sustained Ichtertz’ objection and overruled
the Slaters’ motion, giving three reasons for its decision under
§ 24-734(5). First, it found the motion lacked the specificity
required by the statute and instead sought “blanket approval for
any witness, from either party, to appear by videoconferenc-
ing.” Second, it found the Slaters had not offered any evidence
to support a good cause finding under the statute. And finally,
the court found that Ichtertz satisfied his burden of proving
unfairness under § 24-734(5)(c).
As an alternative statutory basis for its ruling, the court
referenced Neb. Rev. Stat. § 24-303(2) (Cum. Supp. 2022),
which governs when, where, and how a district court may con-
duct evidentiary and nonevidentiary hearings telephonically,
by videoconference, or by use of similar equipment. Section
24-303(2) states, in part, that “[s]uch hearings shall not include
trials before a jury.” Here, the trial court cited § 24-303(2) for
the general proposition that jury trials may not be “heard by
videoconferencing.”
[27] On appeal, the Slaters assign and argue that the
trial court erred in overruling their motion to allow witness
testimony by videoconference. Matters of courtroom man-
agement, including the efficient management of evidence
and witnesses, are left to the discretion of the trial court, 47
and thus are reviewed by an appellate court for an abuse
of discretion.
47 See State v. Garcia, 315 Neb. 74, 994 N.W.2d 610 (2023) (finding
no abuse of discretion in trial court’s decision to conduct hearing by
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(i) Slaters Failed to Show Good
Cause Under § 24-734(5)
[28] Under § 24-734(5)(a), it is the moving party’s burden
to show good cause for permitting “any witness” to testify by
telephonic, videoconference, or similar methods in any civil
case. The Slaters’ motion did not identify any particular wit-
ness, and instead, it requested a blanket order permitting all
trial witnesses to testify remotely at the parties’ discretion.
During the hearing, the Slaters narrowed their request to all
“out-of-state witnesses,” but even if this could be considered
sufficiently specific under § 24-734(5)(a), the Slaters did not
offer any evidence at the hearing to support a finding of good
cause to permit any out-of-state witness to testify at trial
by videoconference.
[29] On appeal, the Slaters argue that the appellate record
contains evidence to support a finding of good cause under
§ 24-734(5)(b)(iii), based on “undue burden or expense to a
party or witness.” The Slaters point to trial evidence regarding
Wysocki’s standard billing rates for traveling and testifying
at trial, and they argue this evidence shows how expensive
it would have been for Wysocki to testify in person at trial.
But this evidence was not offered during the hearing on the
Slaters’ pretrial motion, and an issue not presented to or
decided on by the trial court is not an appropriate issue for
consideration on appeal. 48
On this record, it was not an abuse of discretion to deny the
Slaters’ pretrial motion to permit witness testimony by video-
conference because they failed to satisfy their burden to show
good cause under § 24-734(5)(a) and (b). And because there
was no error in denying the motion under § 24-734(5), it is
not necessary to consider the district court’s alternative reasons
48 State v. Yzeta, 313 Neb. 202, 983 N.W.2d 124 (2023).

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for denying the motion, 49 including its belief that § 24-303(2)
precludes any use of videoconferencing equipment during a
jury trial.
For the sake of completeness, however, we acknowledge
there is tension in the provisions of various Nebraska statutes
that govern the use of telephone and videoconference tech-
nology in civil, juvenile, and criminal cases. 50 As a general
principle, statutes pertaining to the same subject matter, being
in pari materia, must be construed as if they were one law,
giving effect to every provision and attempting to reconcile
different provisions so that they are consistent, harmonious,
and sensible, without rejecting any word, clause, or sentence
as superfluous. 51 Here, we see nothing in the record suggest-
ing the trial court engaged in this sort of analysis when it
construed the videoconferencing provisions of § 24-303(2),
but regardless, the issue was not assigned as error or argued
49 See Ronnfeldt Farms v. Arp, 317 Neb. 690, 11 N.W.3d 371 (2024)
(appellate court is not obligated to engage in analysis that is not necessary
to adjudicate case and controversy before it).
50 See, e.g., § 24-303(2) (governing when evidentiary and nonevidentiary
hearings 	in 	district 	court 	may 	be 	conducted 	telephonically, 	by
videoconferencing, or by similar equipment); Neb. Rev. Stat. § 25-2704(2)
(Cum. Supp. 2022) (governing when evidentiary and nonevidentiary hearings
in county court may be conducted telephonically, by videoconferencing,
or by similar equipment); Neb. Rev. Stat. § 43-278 (Reissue 2016)
(governing when evidentiary and nonevidentiary hearings in juvenile court
may be conducted telephonically or by videoconferencing); § 24-734(3)
(governing when courts can use telephonic, videoconferencing, or similar
methods to conduct “any proceeding . . . not involving testimony of
witnesses by oral examination”); § 24-734(4) (governing when courts may
permit witness testimony by telephonic, videoconferencing, or similar
methods in criminal cases); § 24-734(5) (governing when courts “shall”
permit witness testimony by telephonic, videoconferencing, or similar
methods in civil cases); Neb. Rev. Stat. §§ 29-4201 to 29-4207 (Reissue
2016 & Cum. Supp. 2022) (governing how and when courts may permit
detainees or prisoners in nonevidentiary criminal proceedings to make an
“audiovisual court appearance”).
51 See In re Estate of McCormick, 317 Neb. 960, 12 N.W.3d 802 (2024).

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on appeal. As such, resolution of this appeal does not require
that we address whether the videoconferencing provisions in
§§ 24-303(2) and 24-734(5) can be reconciled in a way that is
consistent, harmonious, and sensible, and we express no opin-
ion in that regard.
V. CONCLUSION
On this record, it was error to grant a directed verdict in
favor of Ichtertz at the close of the Slaters’ case in chief. We
therefore reverse the judgment in favor of Ichtertz and remand
the cause for a new trial.
Reversed and remanded for a new trial.
Heavican, C.J., not participating in the decision.
Papik, J., not participating.
Stacy, J., concurring.
I agree with the majority’s analysis and holdings. I write
separately to address an additional issue that may arise on
remand: In a medical malpractice case where the evidence
adduced is sufficient to survive a directed verdict under both
a traditional negligence theory and under a res ipsa loquitur
theory, is the jury instructed on both theories?
Obviously, the fact that the evidence in this appellate
record was sufficient to survive a directed verdict under both
a traditional negligence theory and a res ipsa loquitur theory
does not mean that if, on retrial, the Slaters again choose to
proceed under both theories, the evidence will again be suf-
ficient on what may be a different evidentiary record. But
in the event the district court determines on retrial that the
Slaters have adduced sufficient evidence of both theories
to survive a directed verdict, the court will need to decide
how to instruct the jury. Our case law provides guidance on
that issue.
First, it must be acknowledged that this court has long
recognized a rule that generally permits plaintiffs to proceed
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theory of res ipsa loquitur. 1 We first recognized this rule in
Knies v. Lang, 2 decided in 1928. Knies cited Cassady v. Old
Colony Street Railway, 3 a decision from the Supreme Court of
Massachusetts, as authority for the rule. Cassady rejected the
argument that a plaintiff may not proceed at trial under both
traditional negligence and res ipsa loquitur, and explained:
The defendant also contends that, even if originally
the doctrine [of res ipsa loquitur] would have been appli-
cable, the plaintiff had lost or waived her rights under
that doctrine, because instead of resting her case solely
upon it she undertook to go further and show particularly
the cause of the accident. This position is not tenable. It
is true that where the [trial] evidence shows the precise
cause of the accident, . . . there is of course no room for
the application of the doctrine of presumption. The real
cause being shown, there is no occasion to inquire as to
what the presumption would have been if the cause had
1 See, Long v. Hacker, 246 Neb. 547, 558, 520 N.W.2d 195, 203 (1994)
(“introduction of some [trial] evidence which tends to show the specific
acts of negligence on the part of the defendant, but which does not
purport to furnish full and complete explanation of the occurrence, does
not destroy the inferences which are consistent with the evidence and so
does not deprive the plaintiff of the benefit of res ipsa loquitur”). See,
also, Anderson v. Union Pacific RR. Co., 295 Neb. 785, 792, 890 N.W.2d
791, 796 (2017) (noting plaintiff properly tried case on both theories,
but holding district court erred in instructing jury on res ipsa loquitur
because plaintiff adduced “direct evidence of the precise cause of the
accident”); Beatty v. Davis, 224 Neb. 663, 665, 400 N.W.2d 850, 852
(1987) (explaining plaintiff can introduce evidence of specific acts of
negligence and rely on res ipsa loquitur at trial, but if plaintiff adduces
“direct evidence of the precise cause of the accident, the doctrine of res
ipsa loquitur is not applicable”); Knies v. Lang, 116 Neb. 387, 391, 217
N.W. 615, 616 (1928) (recognizing res ipsa loquitur theory no longer
available to plaintiff if trial evidence “‘shows the precise cause of the
accident’”).
2 Knies, supra note 1.
3 Cassady v. Old Colony Street Railway, 184 Mass. 156, 68 N.E. 10 (1903).

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not been shown. But if at the close of the evidence the
cause does not clearly appear, or if there is a dispute as to
what it is, then it is open to the plaintiff to argue upon the
whole evidence, and the jury are justified in relying upon
a presumption unless they are satisfied that the cause has
been shown to be inconsistent with it. An unsuccessful
attempt to prove by direct evidence the precise cause does
not estop the plaintiff from relying upon the presumptions
applicable to it. 4
Since Knies, the Nebraska Supreme Court has consistently
recited the rule that plaintiffs do not automatically lose the
opportunity to rely on the theory of res ipsa loquitur by choos-
ing to offer trial evidence tending to show a specific act or acts
of negligence committed by the defendant. 5 In Beatty v. Davis, 6
we explain that it
“is quite generally agreed that the introduction of some
evidence which tends to show specific acts of negligence
on the part of the defendant, but which does not purport
to furnish full and complete explanation of the occurrence
does not destroy the inferences which are consistent with
the evidence, and so does not deprive the plaintiff of the
benefit of res ipsa loquitur. W. Prosser, Law of Torts 236
(3d ed. 1964).”
But once a plaintiff has adduced sufficient “direct evi-
dence of the precise cause of the accident,” 7 they can lose
the opportunity to rely on res ipsa loquitur, because there
is no need for an inference of negligence even if there is
4 Id. at 163, 68 N.E. at 12-13.
5 See, Anderson, supra note 1; Long, supra note 1; Beatty, supra note 1.
6 Beatty, supra note 1, 224 Neb. at 666, 400 N.W.2d at 853.
7 Anderson, supra note 1, 295 Neb. at 792, 890 N.W.2d at 796. See, also,
Knies, supra note 1; NJI2d Civ. 2.13, comment III at 215 (stating if
“there is direct evidence of the precise cause of the accident, then res ipsa
loquitur is in applicable [sic] and, of course, since the res ipsa doctrine is
inapplicable,” a jury instruction on it should not be given).

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competent evidence to support it. 8 Other jurisdictions follow
the same rule. 9
In this appeal, it was not necessary to consider whether
the Slaters adduced sufficient direct evidence of the precise
cause of the ulnar nerve injury to preclude a jury instruction
on the theory of res ipsa loquitur. But should the issue arise
on remand, existing case law provides a framework for the
trial court to apply when determining which theory or theo-
ries, if any, should be submitted to the jury at the close of all
the evidence.
8 See Anderson, supra note 1. See, also, Annot., 33 A.L.R.2d 791, 793
(1954) (stating there is “universally accepted rule that there is no room
for or need for the operation of any inference or presumption under the
res ipsa loquitur doctrine where the evidence in the case reveals all the
facts and circumstances surrounding the occurrence in suit and clearly
establishes the precise cause of the plaintiff’s injury”).
9 See, generally, 1 Stuart M. Speiser, The Negligence Case: Res Ipsa
Loquitor § 5:18 (Cum. Supp. 2025); 33 A.L.R.2d, supra note 7, § 4 at 806
(citing cases from over 20 jurisdictions and recognizing Cassady, supra
note 3, as “the most frequently cited decision upon the subject”).