¶1concurring.
¶2I do not agree with the majority’s decision that a directed verdict cannot be granted when there is expert testimony offered into evidence. Furthermore, I would not have permitted the instruction on intervening cause.
¶3DIRECTED VERDICT
¶4I disagree with the majority decision to the extent that it holds that the testimony of an expert witness, without more, serves to preclude a directed verdict. This court has held that where there is evidence from expert testimony, a directed verdict should not be granted, because the trier of fact must weigh the evidence and resolve the contradiction. See, Cassio v. Creighton University, 233 Neb. 160, 446 N.W.2d 704 (1989); Lane v. State Farm Mut. Automobile Ins. Co., 209 Neb. 396, 308 N.W.2d 503 (1981). However, where there is uncontroverted evidence and the court determines that reasonable minds can draw but one conclusion from the evidence, the introduction of expert testimony, alone, should *60not bar the court from granting a directed verdict in favor of the plaintiff. If the court can grant a directed verdict where there is uncontroverted lay testimony, there is no reason to apply a different standard to expert testimony.
¶5A directed verdict is proper where reasonable minds can draw but one conclusion from the evidence. There is no reason to exempt cases involving expert testimony from this rule. If, in light of all the evidence, including testimony, the trial court finds that a directed verdict is warranted because reasonable minds cannot differ and can draw but one conclusion from the evidence, the fact that the evidence includes expert testimony should not bar the directed verdict.
¶6Verdicts cannot be based solely on possibility, conjecture, or speculation. Wessel v. City of Lincoln, 145 Neb. 357, 16 N.W.2d 476 (1944). See, also, Mustion v. Ealy, 201 Neb. 139, 266 N.W.2d 730 (1978). In holding that the mere presence of expert testimony prevented a directed verdict for plaintiff, this court permits a jury to entertain defendant’s theory, although it has no basis in the evidence.
¶7EFFICIENT INTERVENING CAUSE
¶8As to the instruction on intervening cause, I believe this is the “appropriate time” and “appropriate case,” as stated in Mundt v. Northwestern Bell Tel. Co., 230 Neb. 192, 197, 430 N.W.2d 530, 533 (1988), in which this court should allow the intervening cause instruction to “pass from the scene,” id.In Mundt, we found that the trial court had committed error in failing to give an instruction on intervening, or superseding, cause, partly because the phrase “intervening cause” was included in the proximate cause instruction. Failure to define “intervening cause” therefore constituted error. In addition, the defendant had pled the issue of intervening cause and introduced facts which justified giving the instruction to the jury.
¶9The proximate cause instruction given to the jury in this case does not contain the words “intervening cause.” It states: “A proximate cause is a cause that produces a result in a natural and continuous sequence and without which the result would not have occurred.” In addition, no facts were introduced which would require the instruction on intervening cause.
¶10*61The Nebraska Supreme Court Committee on Civil Practice and Procedure suggests that the instruction on proximate cause, NJI2d Civ. 3.41; the instruction on concurring cause, NJI2d Civ. 3.42; and the instruction on the conduct of a nonparty third person as the sole and proximate cause, NJI2d Civ. 3.44, are sufficient instruction for the jury. NJI2d Civ. 3.43 comment. The committee recommends that the instruction on superseding or efficient intervening cause be treated as part of the plaintiff’s proof of proximate cause or concurring cause.
The plaintiff must prove that the incident under litigation was “a” proximate cause of his or her injury. When the trier of fact decides that a “superseding” cause is “the” proximate cause, it has decided that the plaintiff has not met this burden of proof, has not proved that the incident under litigation was “a” proximate cause. Approaching it from the other direction, the plaintiff has the burden of proving that the defendant’s acts were a proximate cause; if the plaintiff does that, then he or she has proved that subsequent acts were not the sole proximate cause. If there was a so-called superseding cause, then the act under litigation was not a proximate cause. However you look at it, the burden is on the plaintiff.
¶11NJI2d Civ. 3.43 comment at 185.
¶12I agree with the committee that superseding or efficient intervening cause should be considered as part of a plaintiff’s proof of proximate cause. Furthermore, the instruction on intervening cause in this case was unnecessary and prejudicial. By instructing the jury on intervening cause, the court allowed the jury to absolve defendant of his liability regarding the shoulder impingement syndrome because of defendant’s totally unsubstantiated theory regarding the occurrence of an accident in October 1986.