Attorneys argue on motion for new trial

Staff Writer

Custer County District Court Judge Karin Noakes took the motion for a new trial in Christensen v. Sherbeck and Christensen v. Broken Bow Public Schools (BBPS) under advisement in District Court Thursday morning (1/3/19).

On Dec. 13, 2018, a jury found for the defendant Sherbeck, agreeing the defendant met the burden of proof that Albert Sherbeck suffered a sudden loss of consciousness that caused his pickup truck to cross the center line and collide with a van carrying two Broken Bow coaches and several basketball players returning from a basketball clinic. The jury also found on Dec. 13 that the plaintiffs did not meet their burden of proof that Beverly Sherbeck was negligent. On Dec. 11, 2018, the court delivered a directed verdict for Broken Bow Public Schools.

Attorney James Duncan argued the motion separately for the two cases. Daniel Plazcek spoke for the defendant Beverly Sherbeck as a representative of the Albert Sherbeck estate as well as an individual. Matthew Reilly spoke for the Broken Bow Public Schools.

In support of the motion for a new trial, Duncan argued the defense testimony of two doctors should not have been allowed, saying their testimony was “pure speculation.” He said there was no evidence that Sherbeck lost consciousness and the doctors’ testimony led the jurors to speculate.

Duncan also argued the court’s decision to not allow the full testimony of doctors for the plaintiff was prejudicial, that under the Rule of Completeness the autosy report should have been allowed as evidence and that the court should not have instructed the jury on “sudden loss of consciousness.”

In arguing against the motion, defense attorney Placzek stated the judge struck the opinions of Doctors Mahoney and McGowan and they instead testified to Sherbeck’s medical condition stating that he was at increased risk for a sudden cardiac event, which, Plazcek said, is “always admissible.”

Plazcek also said there was a lot of testimony about the autopsy report and that the Rule of Completeness doesn’t apply to evidence not offered and he didn’t recall the autopsy report being offered and denied. He said the loss of consciousness instruction was “properly given,” that both Mahoney and McGowan testified sudden loss of consciousness was not foreseeable and Sherbeck’s own cardiologist “didn’t instruct him not to drive.” He reminded the court Nebraska State Trooper Dion Nuemiller testified there were no skid marks or evidence of reduction in speed of the pickup. Plazcek argued that, based on evidence, Sherbeck was not distracted or asleep which was enough for the jury to form a basis of sudden loss of consciousness.

For Christensen v. Broken Bow Public Schools, Duncan argued BBPS was negligent for failing to ensure the basketball players were wearing seat belts and the fact that the Sherbeck vehicle caused the collision doesn’t absolve the school district of liability. “There might have been an accident therefore the boys should have been wearing seat belts,” he said. “A reasonable person would have the boys wearing seat belts.”

In answer,Reilly argued evidence of a person not wearing a seat belt cannot be the only evidence of negligence; there has to be an intervening cause. In this case it was the Sherbeck vehicle changing lanes and that cut off liability. “The court was correct in granting a direct verdict,” Reilly said.

Judge Noakes said she would render her decisions as soon as possible.

Beverly Sherbeck was present with her attorney, Daniel Placzek. The Christensens were not in the courtroom. David Houghton, attorney for the plaintiffs, attended telephonically.

The cases stem from a June 1, 2012 collision in which a pickup driven by Albert Sherbeck crossed the center line on Hwy 2 near Ansley and collided head-on with the school van. Sherbeck and the two coaches in the van died in the collision. Several students were injured, with Chad Christensen being the most severely injured.