663 N.W.2d 43 (2003) 265 Neb. 918

Colin M. GOURLEY, a Minor, By and Through Michael J. GOURLEY, his Father, and Lisa A. Gourley, his Mother, as Next Friends and Natural Guardians, et al., Appellees,
v.
NEBRASKA METHODIST HEALTH SYSTEM, INC., a corporation, Appellee, and
Michelle S. Knolla, M.D., and Obstetricians-Gynecologists, P.C., Doing Business as the OB/GYN Group, Appellants.

No. S-00-679.

Supreme Court of Nebraska.

May 16, 2003.

*55 William M. Lamson, Jr., Raymond E. Walden, and William R. Settles, of Lamson, Dugan & Murray, L.L.P., and John R. Klein, Omaha, for appellants.

Daniel B. Cullan and Paul W. Madgett, of Cullan & Cullan, and John Vail,Omaha, for appellees Colin M. Gourley et al.

James A. Snowden and Andrew B. Koszewski, of Wolfe, Snowden, Hurd, Luers & Ahl, Omaha, for appellee Andrew Robertson, M.D.

Thomas J. Shomaker and Mary M. Schott, of Sodoro, Daly & Sodoro, Omaha, for appellee Nebraska Methodist Health System, Inc.

Charles M. Pallesen, Jr., of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Lincoln, for amici curiae Nebraska Medical Association and Greater Nebraska Medical Coalition.

William F. Austin, of Erickson & Sederstrom, P.C., Lincoln, for amici curiae Nebraska Association of Hospitals and Health Systems and Cherry County Hospital.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, and McCORMACK, JJ., and HANNON and CARLSON, Judges.

PER CURIAM.

Neb.Rev.Stat. § 44-2825(1) (Reissue 1998) of the Nebraska Hospital-Medical Liability Act limits recoverable damages in medical malpractice actions to $1,250,000. The district court determined that the damages limitation was unconstitutional because it denied the appellees Colin M. Gourley and his parents, Michael J. Gourley and Lisa A. Gourley, equal protection of the law and a right to a jury trial. The appellants, Michelle S. Knolla, M.D., and Obstetricians-Gynecologists, P.C., doing business as the OB/GYN Group, contend that (1) the district court erred in determining that § 44-2825(1) was unconstitutional, (2) the jury verdict was invalid, and (3) the court erred in admitting hearsay and irrelevant evidence.

I. NATURE OF CASE

The Gourleys brought this medical malpractice action against Nebraska Methodist Health System, Inc., and Nebraska Methodist Hospital (collectively Methodist Hospital); Knolla; Marvin L. Dietrich, M.D.; Andrew Robertson, M.D.; Pauline R. Sleder, M.D.; OB/GYN Group; and Perinatal Associates, P.C. The Gourleys sought damages for injuries sustained by Colin because of the alleged negligent care Lisa received during her pregnancy. A jury awarded the Gourleys $5,625,000, and the district court entered judgment for the Gourleys in that amount and against Knolla and the OB/GYN Group.

II. BACKGROUND

During her pregnancy, Lisa received prenatal care from Knolla, an obstetrician and gynecologist employed with the OB/GYN Group. On November 15, 1993, in the 36th week of her pregnancy, Lisa informed Knolla that she noticed less movement from the twin fetuses she was carrying. Knolla assured Lisa that this was common and that everything appeared to be normal. Two days later, Lisa called the OB/GYN Group to again report a lack of fetal movement and was told to come to the office to meet with Dietrich. Dietrich's examination revealed that one of the fetuses suffered from bradycardia, a decrease in the fetus' heart rate, and a lack of amniotic fluid. Dietrich instructed Lisa to proceed to Methodist Hospital for examination by Robertson, who was employed by Perinatal Associates.

*56 During his examination, Robertson determined that an immediate cesarean section should be performed. Shortly thereafter, Colin and his twin brother, Connor, were delivered. Colin was born with brain damage and currently suffers from cerebral palsy and significant physical, cognitive, and behavioral difficulties.

The Gourleys filed suit alleging that Knolla and the OB/GYN Group failed to monitor Lisa and Colin while they were under their care. At the close of the Gourleys' case in chief, Methodist Hospital moved for a directed verdict. The court granted the motion and dismissed Methodist Hospital.

The jury found Knolla and the OB/GYN Group to be 60 percent and 40 percent negligent, respectively. The jury awarded the Gourleys $5,625,000. The Gourleys moved for a new trial, arguing that the court erred in granting a directed verdict to Methodist Hospital. The jury found for Dietrich, Robertson, Sleder, and Perinatal Associates, and the court later dismissed them from the case.

The district court reduced the jury's award and entered judgment for the Gourleys and against Knolla and the OB/GYN Group, jointly and severally, in the amount of $1,250,000. The court found that § 44-2825(1) was constitutional.

The Gourleys filed a second motion for new trial, contending that the cap on damages imposed by § 44-2825 is unconstitutional because it violates their rights to (1) equal protection; (2) a jury trial; (3) an open court and full remedy; (4) substantive due process; and (5) life, liberty, and the pursuit of happiness. The Gourleys also alleged that the Legislature exceeded its power when imposing the cap and that the cap was unconstitutional special legislation.

Knolla and the OB/GYN Group also moved for a new trial because of 16 alleged errors, among which were that the verdict was not agreed to by five-sixths of the jury as required by Neb.Rev.Stat. § 25-1125 (Reissue 1995) and that the court erred in receiving certain exhibits and testimony into evidence.

The court (1) overruled the Gourleys' motion for new trial on Methodist Hospital's directed verdict and (2) overruled Knolla and the OB/GYN Group's motion for new trial, specifically rejecting their argument that the jury verdict was invalid. Knolla and the OB/GYN Group's other grounds for new trial were also overruled without explanation.

The court reversed its decision and concluded that the cap on damages in § 44-2825(1) violated equal protection under Neb. Const. art. I, § 3. The court also concluded that § 44-2825(1) violated the Gourleys' right to a jury trial under Neb. Const. art. I, § 6. The court found that § 44-2825(1) was severable from the rest of the act. The court vacated its previous order and entered judgment for the Gourleys and against Knolla and the OB/GYN Group, jointly and severally, in the full amount of $5,625,000. Knolla and the OB/GYN Group appeal.

III. ASSIGNMENTS OF ERROR

Knolla and the OB/GYN Group assign that the district court erred in (1) denying their motion for new trial when the jury returned an invalid verdict; (2) admitting unsupported and hearsay evidence in the form of a "Life Care Plan for Colin Gourley" by Terry Winkler, M.D.; (3) admitting a book, "What To Expect When You're Expecting," into evidence which contained hearsay, was itself hearsay, and was likely to confuse the jury; (4) overruling their motion for new trial; (5) declaring unconstitutional the damages cap of *57 the Nebraska Hospital-Medical Liability Act, § 44-2825, and in reversing its order reducing the amount of the judgment to the statutory maximum of $1,250,000; and (6) applying its ruling on the constitutionality of the act retrospectively.

The Gourleys purported to file a cross-appeal, assigning that the court erred in granting Methodist Hospital's motion for directed verdict.

IV. STANDARD OF REVIEW

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 such discretion a factor in determining admissibility. Green Tree Fin. Servicing v. Sutton, 264 Neb. 533, 650 N.W.2d 228 (2002). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Gallner v. Hoffman, 264 Neb. 995, 653 N.W.2d 838 (2002).

Statutory interpretation presents a question of law, on which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Newman v. Thomas, 264 Neb. 801, 652 N.W.2d 565 (2002).

Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the court below. Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003).

V. ANALYSIS

1. Jury Verdict

Knolla and the OB/GYN Group argue that they are entitled to a new trial because the verdict was not agreed to by five-sixths of the jury as required by § 25-1125.

Section 25-1125 provides that "[i]n all trials in civil actions in any court in this state, a verdict shall be rendered if five-sixths or more of the members of the jury concur therein, and such verdict shall have the same force and effect as though agreed to by all members of the jury...." Here, the jury signed and returned two verdict forms. We construe verdict form No. 2 as requiring the jury to determine which defendants were liable and verdict form No. 1 as requiring the jury to decide the amount of damages and how to apportion the defendants' negligence. Although 10 jurors signed both verdict forms, the forms were not signed by the same 10 jurors. This means that a juror who disagreed with the determination of who was liable provided the 10th vote necessary to decide the amount of damages and how to apportion the defendants' negligence. Thus, we must decide if a verdict is valid under § 25-1125 if the same five-sixths of the jury fails to agree on each essential issue embodied in that verdict.

In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Newman v. Thomas, supra. Nothing in the plain language of § 25-1125 indicates whether the same five-sixths of a jury must agree on each essential issue embodied in its verdict. Several jurisdictions, however, have addressed the issue within the context of similar statutory and *58 constitutional provisions, and we turn to these cases for guidance in construing § 25-1125.

Other jurisdictions have answered the question in one of two ways. See David A. Lombardero, Do Special Verdicts Improve the Structure of Jury Decision-Making?, 36 Jurimetrics J. 275 (1996). One group has adopted the "same juror" rule. See, e.g., Stacy v. Truman Medical Center, 836 S.W.2d 911 (Mo.1992); O'Connell v. Chesapeake & Ohio RR., 58 Ohio St.3d 226, 569 N.E.2d 889 (1991); Klanseck v. Anderson Sales, 136 Mich.App. 75, 356 N.W.2d 275 (1984); Ferguson v. Northern States Power Co., 307 Minn. 26, 239 N.W.2d 190 (1976); Clark v. Strain et al, 212 Or. 357, 319 P.2d 940 (1958); Fleischhacker v. State Farm Mut. Automobile Ins. Co., 274 Wis. 215, 79 N.W.2d 817 (1956). Under this rule, the same fractional group of jurors must concur on each issue necessary to support the ultimate verdict. See H. William Walker, Jr., Comment, Vote Distribution in Non-Unanimous Jury Verdicts, 27 Wash. & Lee L.Rev. 360 (1970). If we adopt the same juror rule, the verdict would be invalid because the 10 jurors who determined which defendants were liable were not the same 10 jurors who apportioned the defendants' negligence and determined the amount of damages.

Other courts have rejected the "same juror" rule in favor of the "any majority" rule. See, e.g., Hendrix v. Docusort, Inc., 18 Kan.App.2d 806, 860 P.2d 62 (1993); Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503 (Ky.1989); Williams v. James, 113 N.J. 619, 552 A.2d 153 (1989); Schabe v. Hampton Bays, 103 A.D.2d 418, 480 N.Y.S.2d 328 (1984); Juarez v. Superior Court of Los Angeles Cty., 31 Cal.3d 759, 183 Cal.Rptr. 852, 647 P.2d 128 (1982); Tillman v. Thomas, 99 Idaho 569, 585 P.2d 1280 (1978); McChristian v. Hooten, 245 Ark. 1045, 436 S.W.2d 844 (1969); Ward v. Weekes, 107 N.J.Super. 351, 258 A.2d 379 (1969). Under this rule, all jurors are free to deliberate and vote on every issue "regardless of their votes on other issues.... Plaintiff prevails if the specified number of jurors find in her favor on each element." Lombardero, supra, at 298. If we adopt the any majority rule, the verdict would be valid, because at least 10 jurors found for the Gourleys on each element necessary to support a verdict in their favor.

Although there are persuasive arguments for both rules, we conclude that the "any majority" rule better serves the purposes underlying § 25-1125. See Volquardson v. Hartford Ins. Co., 264 Neb. 337, 352, 647 N.W.2d 599, 611 (2002) ("[w]hen construing a statute, an appellate court must look to the statute's purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it").

The movement to abolish the unanimous verdict requirement was meant to improve judicial efficiency while preserving fundamental fairness in the jury system. As one court has explained: "Nonunanimous verdicts decrease the number of mistrials and retrials and thus reduce court congestion, delay and the cost of maintaining the judicial system. They also reduce the number of unjust verdicts deriving from juror obstinacy or dishonesty and discourage compromise verdicts." Schabe v. Hampton Bays, 103 A.D.2d at 423, 480 N.Y.S.2d at 333. See, also, Ward v. Weekes, supra.

Courts have recognized that the "mechanistic" same juror rule does less to improve judicial efficiency than the any majority rule. Tillman v. Thomas, supra. Under the same juror rule, the same fractional group of jurors must agree on each issue necessary to support the ultimate verdict. For example, in a typical personal *59 injury case, only the jurors in the five-sixths majority that agreed that a defendant was negligent could vote on the question of damages. The votes of any jurors who dissented on the negligence question could not be used to reach a five-sixths majority on the damages question. As a result, if the 10 jurors who agreed on the negligence question could not agree on the question of damages, the result would be a hung jury.

But under the any majority rule, a juror who dissents on one issue is allowed to vote on subsequent issues. A juror who disagreed on the question of negligence would still be eligible to provide the vote needed to reach a five-sixths majority on the question of damages. This flexibility reduces the risk of hung juries, as well as all of the associated costs and delays, thus advancing the policy of judicial efficiency underlying § 25-1125 better than the same juror rule. See, Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503 (Ky.1989); Williams v. James, 113 N.J. 619, 552 A.2d 153 (1989); Schabe v. Hampton Bays, 103 A.D.2d 418, 480 N.Y.S.2d 328 (1984); Juarez v. Superior Court of Los Angeles Cty., 31 Cal.3d 759, 183 Cal.Rptr. 852, 647 P.2d 128 (1982).

Those courts that have adopted the same juror rule have generally conceded that it will lead to less judicial efficiency than the any majority rule. They have argued, however, that two other principles are more important than judicial efficiency, unanimity of the statutorily required minimum number of jurors and consistency in individual juror voting. David A. Lombardero, Do Special Verdicts Improve the Structure of Jury Decision-Making?, 36 Jurimetrics J. 275 (1996). We are not persuaded by either argument.

Those courts that have relied upon unanimity in adopting the same juror rule see the verdict as a "non-fragmentable totality," representing "one ultimate finding on the basis of several issues." H. William Walker, Jr., Comment, Vote Distribution in Non-Unanimous Jury Verdicts, 27 Wash. & Lee L.Rev. 360, 363-64 (1970). Thus, the verdict cannot be "`the product of mixed thoughts.'" Clark v. Strain et al, 212 Or. 357, 364, 319 P.2d 940, 943 (1958) (quoting The State v. Bybee, 17 Kan. 462 (1877)). Instead, it must represent the unified thinking of the statutorily required minimum number of jurors.

This reasoning is misplaced. "The requirement of the same jurors agreeing, which is a necessary characteristic of a unanimous verdict, needs [sic] not remain when there has been a change permitting less than unanimity to be the jury's verdict." Naumburg v. Wagner, 81 N.M. 242, 245, 465 P.2d 521, 524 (N.M.App.1970). We see no reason to "maintain the semblance of unanimity after the requirement of unanimity ceases to exist." Id. See, also, Williams v. James, supra.

More recent decisions adopting the same juror rule have relied primarily upon the principle of consistency. See, O'Connell v. Chesapeake & Ohio RR., 58 Ohio St.3d 226, 569 N.E.2d 889 (1991); Ferguson v. Northern States Power Co., 307 Minn. 26, 239 N.W.2d 190 (1976). These courts contend that inconsistent votes on related issues "indicate that the jurors disagree or do not comprehend." Lombardero, supra, at 301. They also question the ability of jurors in the dissenting minority on one issue "to cast aside their opinions and vote on subsequent issues as if they agreed with the majority." Id. Courts have been particularly concerned about the ability of a juror who dissented on the question of who was negligent to fairly participate on the question of how to apportion negligence. See, e.g., O'Connell v. Chesapeake & Ohio RR., 58 Ohio St.3d at 235, 569 N.E.2d at 897 ("where a juror finds that a *60 plaintiff has not acted in a causally negligent manner, it is incomprehensible to then suggest that this juror may apportion some degree of fault to the plaintiff and thereby diminish or destroy the injured party's recovery").

We are not persuaded that the concerns over consistency are enough to reject the benefits of the any majority rule. We have more faith in the mental capabilities and ethical integrity of jurors than the courts that have adopted this line of reasoning. We refuse to presume that a juror who dissents on one issue will violate his or her oath and attempt to subvert the deliberations on a subsequent issue, even if the issues are integrally related. See, Ward v. Weekes, 107 N.J.Super. 351, 258 A.2d 379 (1969). In our view, it is more likely that a juror who is outvoted on one issue can "`accept the outcome and continue to deliberate with other jurors honestly and conscientiously to decide the remaining issues.'" Juarez v. Superior Court of Los Angeles Cty., 31 Cal.3d 759, 768, 183 Cal.Rptr. 852, 857, 647 P.2d 128, 133 (1982) (quoting Ward v. Weekes, supra).

Moreover, the same juror rule sacrifices a principle of the jury system that is more fundamental than either unanimity or consistency. That principle is that "all members of a jury ... partake meaningfully in [the] disposition of the case." Schabe v. Hampton Bays, 103 A.D.2d 418, 424, 480 N.Y.S.2d 328, 333 (1984). The same juror rule reduces the ability of a juror who dissents on one issue to meaningfully participate in the discussion of the remaining issues. The dissenter remains free to express his or her opinions on the remaining issues, but with the power to persuade divorced from the power to vote, the dissenter's influence is reduced to "a state of practical impotence." Schabe v. Hampton Bays, 103 A.D.2d at 424, 480 N.Y.S.2d at 333.

By contrast, the any majority rule preserves the principle of full participation in the deliberative process. A juror who dissents on one issue retains the ability to vote on subsequent issues. Thus, the power to vote remains united with the power to debate and the dissenter can deliberate fully and effectively on each issue presented to the jury.

Accordingly, because we believe that it furthers judicial efficiency while protecting fundamental fairness better than the same juror rule, we adopt the any majority rule. A juror is free to deliberate and vote on each issue presented to the jury, even if the juror has dissented from the majority on a previous issue. Even though a juror, who disagreed on the question of who was liable, provided the 10th vote necessary on the damages and apportionment questions, the verdict was valid.

2. Life Care Plan

At trial, the Gourleys called Winkler, a specialist in physical medicine and rehabilitation, to testify about the life care plan that he had developed for Colin. A life care plan is a comprehensive document which includes the items of service, medications, doctor's visits, and equipment a disabled person will need over the course of his or her life, as well as the costs associated with each of these items. During the direct examination of Winkler, each page of the life care plan was displayed to the jury and received into evidence.

As we understand their brief, Knolla and the OB/GYN Group make two complaints about Winkler's testimony and the life care plan. First, they claim that the life care plan and some of Winkler's testimony contained opinions that were too uncertain to be relevant. Second, they argue that the life care plan was inadmissible hearsay.

*61 (a) Relevance

During direct examination, Winkler admitted that for several of the items that he included in Colin's life care plan, he could not state to a reasonable degree of medical certainty that Colin would require that item in the future. He explained that he included these items in the life care plan "to provide information to everybody involved just to help make decisions."

Knolla and the OB/GYN Group argue that the court erred in allowing Winkler to testify about those items for which he was not reasonably certain Colin would need in the future. Similarly, they argue that the life care plan should not have been admitted into evidence because it contained information about these items. We agree, but conclude that the error was harmless.

An expert's opinion need not be expressed with reasonable certainty within the expert's field of expertise, but may be expressed with reasonable probability. The expert's opinion must be sufficiently definite and relevant to provide a basis for the fact finder's determination of an issue or question. Renne v. Moser, 241 Neb. 623, 490 N.W.2d 193 (1992). Expert testimony should not be received if it appears the witness 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. Franksen v. Crossroads Joint Venture, 257 Neb. 597, 599 N.W.2d 603 (1999). When an expert's opinion is mere speculation or conjecture, it is irrelevant. See Snyder v. Contemporary Obstetrics & Gyn., 258 Neb. 643, 605 N.W.2d 782 (2000). Whether an expert's opinion is too speculative to be admitted is a question for the trial court's discretion. See, id.; Anderson/Couvillon v. Nebraska Dept. of Soc. Servs., 253 Neb. 813, 572 N.W.2d 362 (1998).

Winkler admitted that he included information in the life care plan about items for which he was not reasonably certain Colin would need in the future. The context of his testimony makes clear that he was guessing that Colin might possibly need these items. An expert opinion which is merely speculation or conjecture is inadmissible. Here, the court erred by allowing Winkler to testify about the items for which he admitted that he was not reasonably certain Colin would need in the future. Similarly, information about these items should have been redacted from the life care plan before it was accepted into evidence.

That does not, however, end the inquiry. Not every error justifies a new trial; only an error which is prejudicial to the rights of the unsuccessful party does so. Westgate Rec. Assn. v. Papio-Missouri River NRD, 250 Neb. 10, 547 N.W.2d 484 (1996). In the absence of such an error, the successful party, having sustained the burden and expense of trial, may keep the benefit of the verdict. Id. In a civil case, the admission or exclusion of evidence which unfairly prejudices a substantial right of the complaining litigant constitutes reversible error. State v. Whitlock, 262 Neb. 615, 634 N.W.2d 480 (2001). When it appears from the record that evidence wrongfully admitted in a jury trial did not affect the result of the trial unfavorably to the party against whom it was admitted, its reception is not prejudicial error. See Westgate Rec. Assn. v. Papio-Missouri River NRD, supra.

Here, the record shows that although information about items which Colin was not reasonably certain to need in the future was wrongfully admitted into evidence, the receipt did not affect the result of the trial. Instead, the record shows that the jury knew which items Winkler was not reasonably certain Colin *62 would need; that the court instructed the jury to consider only items Colin was reasonably certain to need; and that consistent with the instruction, the jury excluded those items in making its award.

Winkler treated items differently in the life care plan if he was not reasonably certain Colin would need them, and he explained these differences to the jury.

The first part of the life care plan is a 28-page spreadsheet. It provided information about each item that Winkler believed Colin would need or might need because of his disability. The items are listed in horizontal rows. Spaces appear in each row that allowed Winkler to provide eight types of information about each item as follows: (1) when Colin would need the item, (2) how many years Colin would need it, (3) how often Colin would need it, (4) the purpose of the item, (5) the likely vendor of the item, (6) a range of per-unit prices for the item, (7) a range of per-year prices for the item, (8) and any additional comments that Winkler believed necessary to explain the item. Winkler testified that if he was reasonably certain that Colin would need an item in the future, he provided an estimate in the space for the range of per-year prices, but that if he was not reasonably certain that Colin would need the item, he left that space blank.

The second portion of the life care plan was designed to demonstrate how much an item would cost over the course of Colin's life. Every item listed in the first portion of the life care plan was also listed in the second. But, as he explained to the jury, Winkler included only an estimate as to how much an item would cost over the course of Colin's life if he was reasonably certain Colin would need the item in the future. If he was not reasonably certain Colin would need the item, he put zero for the cost of the item. At the end of the second section of the life care plan, Winkler provided a total sum of $12,461,500.22 for all of the items in the life care plan which he was reasonably certain Colin would need.

The jury was aware of exactly which items in the life care plan Winkler was not reasonably certain Colin would need in the future. Moreover, at the end of the trial, the jury was told that it could not consider such information. The court instructed the jury that it could award the "reasonable value of medical, hospital, nursing, therapy, rehabilitation, medical equipment and similar care and supplies reasonably needed by and actually provided to the Plaintiffs and reasonably certain to be provided in the future." (Emphasis supplied.)

It is clear that the jury followed the instruction and excluded from its final award those items which Winkler was not reasonably certain Colin would need. As noted, Winkler estimated the total cost to be $12,461,500.22 over the course of Colin's life for items which he was reasonably certain Colin would need. Later in the trial, an economist testified that the present value of that amount, depending on which discount factor was used, was a minimum of $5,943,111. But the jury awarded only $5 million in damages. Thus, the jury did not even award damages for each of the items Winkler had testified that he was reasonably certain Colin would need, let alone the items for which Winkler was not reasonably certain Colin would need. We conclude that although the court erroneously admitted irrelevant information about items which Winkler was not reasonably certain Colin would require, the error was harmless because it did not unfavorably affect the result of the trial.

(b) Hearsay

At trial, the Gourleys displayed each page of the life care plan to the jury during Winkler's testimony. When his testimony was over, the court received the *63 life care plan into evidence. As we understand their brief, Knolla and the OB/GYN Group argue that the life care plan was hearsay. They claim that as a result, the Gourleys should not have been allowed to show the life care plan to the jury during Winkler's testimony and that the court should not have received the life care plan into evidence. See State v. Whitlock, 262 Neb. 615, 634 N.W.2d 480 (2001) (holding expert's written appraisal inadmissible as hearsay which would unfairly emphasize his trial testimony).

Knolla and the OB/GYN Group, however, failed to preserve a hearsay objection to the life care plan. One may not on appeal assert a different ground for excluding evidence than was urged in the objection made to the trial court. Benzel v. Keller Indus., 253 Neb. 20, 567 N.W.2d 552 (1997). The only grounds upon which Knolla and the OB/GYN Group objected to the life care plan were foundation, relevancy, speculation, and conjecture; they did not object to the life care plan because it was hearsay.

We note that one of their codefendants objected because the life care plan was a "narrative memorialization of testimony in a written form of the type that is normally not received." While this might be construed as a hearsay objection, Knolla and the OB/GYN Group did not join the objection. If a defendant does not offer an objection and does not expressly adopt a codefendant's objection, the matter is not preserved for him or her on appeal. See, Seaside Resorts v. Club Car, 308 S.C. 47, 416 S.E.2d 655 (S.C.App.1992); Cook Associates, Inc. v. Warnick, 664 P.2d 1161 (Utah 1983); Thomas v. Bank of Springfield, 631 S.W.2d 346 (Mo.App.1982); Wolfe v. East Texas Seed Co., 583 S.W.2d 481 (Tex.Civ.App.1979). We will not consider the argument that the life care plan was hearsay.

3. "What to Expect When You're Expecting"

Knolla and the OB/GYN Group assert that the district court erred in receiving into evidence the book entitled "What to Expect When You're Expecting" (hereinafter the book). During the cross-examination of Knolla, the Gourleys marked the book as an exhibit and asked Knolla several questions about it. The Gourleys then offered the book into evidence. Knolla objected on the grounds that the bo