Elliot Kaplan (plaintiff) was taken from his home to a nearby hospital in Kansas City, Missouri, after complaining of severe abdominal pain. During the hospital visit, Kaplan’s long-time physician performed a CT scan on him which showed an enlarged pancreas. Kaplan was then referred to Mayo Clinic Rochester, Inc. (Mayo) (defendant) for further treatment. After consulting with two Mayo pathologists, Lawrence Burgart, M.D. and Thomas Smyrk, M.D., Mayo surgeon, David Nagorney, M.D. (defendant), recommended Kaplan undergo surgery to remove a portion of his pancreas and stomach believed to be cancerous. After the surgery, Mayo pathologists examined tissue taken from Kaplan’s pancreas and stomach and found no cancerous cells. Kaplan and his wife, Jeanne, (plaintiffs) filed suit against Mayo and the physicians for breach of contract and negligent failure to diagnose. The district court granted Nagorney’s motion for summary judgment and proceeded to trial on the other defendants. At the close of Kaplan’s case, the district court granted judgment as a matter of law (JAML) in favor of Mayo and Burgart on the breach of contract claim. Thereafter, a jury returned a verdict in favor of Mayo and Burgart on the negligent failure to diagnose claim. The Kaplans appealed.