Carrizales v. Creighton St. Joseph , 312 Neb. 296 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 08:06 AM CST
- 296 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296Natasha Carrizales, individually and on behalf of
Nina Carrizales, a minor, as her guardian and next
friend, and Nina Carrizales, by and through her
mother, guardian, and next friend, Natasha
Carrizales, appellants, v. Creighton Saint
Joseph Regional Healthcare System,
LLC, et al., appellees.
___ N.W.2d ___
Filed August 26, 2022. No. S-21-150.
1. Judgments: Jurisdiction: Appeal and Error. The question of juris-
diction is a question of law, upon which an appellate court reaches a
conclusion independent of the trial court; however, findings of the lower
court as to underlying factual disputes, if any, in regard to the jurisdic-
tional issue will be upheld unless they are clearly erroneous.
2. Limitations of Actions: Dismissal and Nonsuit. Neb. Rev. Stat.
§ 25-217 (Reissue 2016) is self-executing, so that an action is dismissed
by operation of law, without any action by either the defendant or the
court, as to any defendant who is named in the action and not served
with process within the time set forth in the statute.
3. Limitations of Actions: Dismissal and Nonsuit: Jurisdiction. After
dismissal of an action by operation of law under Neb. Rev. Stat.
§ 25-217 (Reissue 2016), there is no longer an action pending and the
district court has no jurisdiction to make any further orders except to
formalize the dismissal.
4. Evidence: Appeal and Error. Generally, the control of discovery is a
matter for judicial discretion, and decisions regarding discovery will be
upheld on appeal in the absence of an abuse of discretion.
5. Appeal and Error. Appellate review of a district court’s use of inherent
power is for an abuse of discretion.
6. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court’s decision is based upon reasons that are untenable or
- 297 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296unreasonable or if its action is clearly against justice or conscience,
reason, and evidence.
7. Courts. Nebraska courts, through their inherent judicial power, have
the authority to do all things necessary for the proper administration
of justice.
8. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
9. ____: ____. An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences in that
party’s favor.
10. Summary Judgment: Malpractice: Physicians and Surgeons:
Affidavits: Proof. At the summary judgment stage, it is well settled that
a physician’s self-supporting affidavit suffices to make a prima facie
case that the physician did not commit medical malpractice.
11. Expert Witnesses. A court should not admit expert testimony if it
appears the witness does not possess facts that will enable him or her
to express an accurate conclusion, as distinguished from a mere guess
or conjecture.
Appeal from the District Court for Douglas County: James
T. Gleason, Judge. Affirmed.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellants.
Joseph S. Daly and Mary M. Schott, of Evans & Dixon,
L.L.C., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Natasha Carrizales, individually and on behalf of her
minor daughter, Nina Carrizales (individually and collectively
Carrizales), brought a medical malpractice action alleging neg-
ligence during Nina’s birth. The district court found that one
- 298 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296defendant was dismissed by operation of law as a result of
Carrizales’ failure to timely serve it. The district court granted
summary judgment in favor of the remaining defendants after
granting a motion to strike Carrizales’ expert witness. Carrizales
appeals these rulings. Finding no error, we affirm.
I. BACKGROUND
Carrizales filed her lawsuit on October 30, 2013. In her
complaint, Carrizales alleged that on October 30, 2011, she
was admitted to an Omaha, Nebraska, hospital and that she
gave birth to her daughter that day. Carrizales also alleged
that various doctors responsible for her and her daughter’s
care negligently failed to respond to signs of fetal distress and
that, as a result, her daughter was born with severe disabilities,
which will reduce her life expectancy and require extended
medical attention throughout the course of her life.
Among the defendants named in the lawsuit were Creighton
University Medical Center-Saint Joseph Hospital (Creighton
University Medical Center) and Creighton University. Carrizales
alleged that Creighton University Medical Center operated
the hospital at which the birth took place and that Creighton
University employed or granted privileges to practice medicine
at the hospital to several individual defendants. The individ­
uals named as defendants included three doctors: Caron J.
Gray, Nicholas L. Wulf, and Richard G. Arms III (collectively
the doctors). Carrizales alleged that the doctors provided care
and treatment to Carrizales and her daughter during the course
of Carrizales’ hospital stay.
At issue in this appeal is the district court’s disposition of
Carrizales’ claims against Creighton University and the doc-
tors. Carrizales filed a motion for default judgment against
Creighton University, alleging that it had failed to respond to the
complaint. The district court concluded, however, that because
Carrizales failed to serve Creighton University within the dead-
line provided at the time in Neb. Rev. Stat. § 25-217 (Reissue
2016), Creighton University was dismissed by operation of
- 299 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296law. The district court granted summary judgment in favor of
the doctors after entering an order striking Carrizales’ expert
witness. The district court also denied Carrizales’ motion to
alter or amend. Additional background regarding these issues
is provided in the analysis section below.
II. ASSIGNMENTS OF ERROR
Carrizales assigns, condensed and restated, that the dis-
trict court erred (1) in finding that Creighton University was
dismissed by operation of law under § 25-217, (2) in failing
to grant her motion for default judgment against Creighton
University, (3) in striking her expert witness, (4) in granting
the doctors’ motion for summary judgment, and (5) in denying
her motion to alter or amend.
III. ANALYSIS
1. Dismissal of Creighton University
(a) Background
As noted above, Carrizales filed her lawsuit on October 30,
2013. On October 31, Carrizales filed a praecipe for a sum-
mons to be served on Creighton University, in care of its reg-
istered agent, James S. Jansen, by certified mail. The clerk of
the district court issued the summons the same day consistent
with the instructions of the praecipe. The summons was No.
226226. There is no dispute that Carrizales did not immedi-
ately serve this summons.
Months later, on April 16, 2014, Carrizales filed a sec-
ond praecipe to issue a summons. Like the October 2013
praecipe, it requested a summons to be served on Creighton
University, in care of its registered agent, Jansen, by certified
mail. Later the same day, the clerk of the court issued a sum-
mons. The summons, however, listed the party to be served as
Creighton University Medical Center. This second summons
was No. 255379.
Carrizales filed a service return in the district court on April
28, 2014. The service return listed the No. 226226 summons
- 300 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296in the upper right-hand corner. It indicated that copies of the
summons were sent by certified mail to “Creighton University
Medical Center” care of “James S. Jansen, RA” on April 17.
An accompanying return receipt showed the certified mail was
received April 21.
Over 4 years later, in July 2018, Carrizales filed a motion
asking the district court to enter a default judgment against
Creighton University. It alleged that Creighton University had
been served with the summons, but had not responded to the
complaint. At the hearing on Carrizales’ motion for default
judgment, Creighton University argued that a default judgment
should not be entered against it, because it was not obligated to
respond to Carrizales’ complaint. Creighton University argued
that it was not obligated to respond because Carrizales either
served the wrong party or served the October 2013 summons
after it expired.
In support of the motion for default judgment, Carrizales
offered an affidavit signed by her counsel. That affidavit stated
that Carrizales “filed a Praecipe for issuance of Summons and
Complaint upon Creighton University” on April 14, 2014.
It also stated that “[w]ithin ten days of the issuance of the
Summons by the Clerk, [Carrizales] caused a Summons to
be issued and said Summons was served via certified mail
. . . . A copy of the Summons and Complaint are attached as
Exhibit 2.” The attached exhibit 2 was a copy of summons
No. 255379, dated April 16, 2014. The affidavit also stated
that “[s]ervice was accomplished upon Creighton University
by delivery of a Summons and Complaint upon its registered
agent . . . on or about April 21, 2014, as reflected in the return
of service, a copy of which is attached hereto as Exhibit 6.”
The attached exhibit 6 is a copy of the service return that was
filed with the district court, which lists No. 226226 in the
upper right-hand corner.
The district court entered a written order in December
2020, addressing Carrizales’ motion for default judgment. In
the order, the district court observed that the service return
- 301 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296Carrizales filed listed the document number associated with
the summons issued in October 2013. The district court found
that the October 2013 summons was not delivered until April
2014 and was thus not sent within 10 days of issuance as
required by Neb. Rev. Stat. § 25-505.01(1)(c) (Reissue 2016).
Based on this determination, the district court concluded
that Carrizales failed to serve Creighton University within 6
months of the filing of her lawsuit and that, under § 25-217,
the action against Creighton University was thus dismissed
without prejudice by operation of law.
(b) Standard of Review
[1] By finding that Carrizales’ claims against Creighton
University were dismissed by operation of law, the district
court concluded it lacked subject matter jurisdiction over those
claims. See, Stone Land & Livestock Co. v. HBE, 309 Neb.
970, 962 N.W.2d 903 (2021); Kovar v. Habrock, 261 Neb.
337, 622 N.W.2d 688 (2001). The question of jurisdiction is a
question of law, upon which an appellate court reaches a con-
clusion independent of the trial court; however, findings of the
lower court as to underlying factual disputes, if any, in regard
to the jurisdictional issue will be upheld unless they are clearly
erroneous. Walksalong v. Mackey, 250 Neb. 202, 549 N.W.2d
384 (1996).
(c) Analysis
Carrizales argues that rather than finding that Creighton
University was dismissed by operation of law, the district
court should have entered a default judgment against it. We
focus our attention on the district court’s determination that
Creighton University was dismissed by operation of law. If that
determination is correct, the district court obviously did not
err by declining to enter a default judgment against Creighton
University.
Carrizales makes both factual and legal arguments in con-
tending that the district court erred by finding that Creighton
University was dismissed by operation of law pursuant to
- 302 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296§ 25-217. She argues that the district court erred by making
the factual finding that the summons that Carrizales served in
April 2014 was the summons that was issued in October 2013.
Alternatively, she argues that even if she served the summons
issued in October 2013 in April 2014, the district court erred
by finding as a matter of law that § 25-217 applied.
We will address Carrizales’ factual argument first. Carrizales
argues that her counsel’s affidavit established that the sum-
mons served in April 2014 was the summons issued earlier
that month and that there is no evidence to the contrary. We
disagree with Carrizales that her counsel’s affidavit conclu-
sively established that the summons served in April 2014 was
the summons issued that month. Carrizales’ counsel clearly
averred that he served “a Summons” in April 2014, but it is
not clear to us from the face of the affidavit that he was aver-
ring that he served the summons the clerk had issued earlier
that month. Furthermore, as noted above, Carrizales’ counsel
averred in the affidavit that service of “a Summons” was
accomplished in April 2014 “as reflected in the return of serv­
ice.” The service return, however, listed the document number
corresponding to the summons issued in October 2013. We
also note that while counsel for Carrizales expressed a belief at
oral argument that the summons served in April 2014 was the
summons issued in April 2014, he also acknowledged “some
chance” that it was actually the summons issued in October
2013 that was served in April 2014. Given the evidence before
the district court, we do not find that its determination that
Carrizales served the summons issued in October 2013 was
clearly erroneous.
Having found no grounds to reverse the district court’s deci-
sion based on its factual determination, we turn to Carrizales’
legal argument. Here, Carrizales argues that even if the sum-
mons served on Creighton University was not served within
10 days of issuance as required by § 25-505.01(1)(c), she
nonetheless “served” Creighton University within the deadline
set by § 25-217. She also argues that if Creighton University
- 303 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296had some objection to the summons or service of process,
it was obligated to file a motion under Neb. Ct. R. Pldg.
§ 6-1112(b)(4) or (5). By not filing such a motion, she argues,
Creighton University waived any objection to the service it
received.
At the time Carrizales filed her complaint, § 25-217 pro-
vided that an action “shall stand dismissed without prejudice
as to any defendant not served within six months from the
date the complaint was filed.” Carrizales’ argument requires
us to determine what a plaintiff must do in order for a defend­
ant to be “served” for purposes of the version of § 25-217 in
effect at the time the complaint was filed in this case. On this
point, Carrizales suggested at oral argument that a defendant
is “served” for purposes of § 25-217 when it actually receives
a copy of the summons and complaint pursuant to a method
of service authorized by statute. In Carrizales’ view then,
Creighton University was “served” because service by certified
mail is authorized by statute and it actually received a copy of
the complaint with a summons, albeit an expired one. We are
not persuaded by this argument.
A similar question was at issue in State Farm Mut. Auto
Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d 14(2004). There, we had to determine when service for pur-
poses of § 25-217 occurred in a situation in which a plaintiff
attempted to serve a defendant by publication. We consid-
ered § 25-217 in pari materia with Neb. Rev. Stat. § 25-519(Reissue 2016), the statute directing how service by publica-
tion is to be accomplished, and concluded that the defendant
was not served under § 25-217 until the publication had been
printed in a newspaper in 3 successive weeks, as required by
§ 25-519.
In line with State Farm Mut. Auto Ins. Co., supra, we
believe it appropriate in this case to consider § 25-217 in pari
materia with § 25-505.01(1)(c). The latter statute directs how
service by certified mail is to be accomplished—by send-
ing the summons to the defendant by certified mail “within
- 304 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296ten days of issuance.” Id. In this case, however, the district
court found that Carrizales failed to send a summons to
Creighton University within 10 days of its issuance, and, as we
have stated, that finding was not clearly erroneous. Because
Carrizales failed to follow the statute that directs how certi-
fied mail service is to be accomplished, we find that Creighton
University was not served for purposes of § 25-217.
[2,3] We likewise find no merit to Carrizales’ argument
that without a motion from Creighton University under
§ 6-1112(b)(4) or (5) of the rules of pleading, the district court
could not find that the claim against Creighton University was
dismissed by operation of law pursuant to § 25-217. As we
have explained on many occasions, § 25-217 is self-executing,
so that an action is dismissed by operation of law, without any
action by either the defendant or the court, as to any defend­
ant who is named in the action and not served with process
within the time set forth in the statute. See Davis v. Choctaw
Constr., 280 Neb. 714, 789 N.W.2d 698 (2010). After dismissal
of an action by operation of law under § 25-217, there is no
longer an action pending and the district court has no jurisdic-
tion to make any further orders except to formalize the dis-
missal. Davis, supra. That is what the district court did here
with respect to Creighton University, and for reasons we have
explained, we find that was not erroneous.
2. Striking of Expert Witness
(a) Background
In September 2017, after this case had been pending for
nearly 4 years, the doctors filed a motion requesting that
the district court enter an order striking Dr. Fred Duboe as
an expert witness for Carrizales. In the motion to strike, the
doctors asserted that after Carrizales designated Duboe, a
physician based in Illinois, as an expert witness in August
2015, their counsel contacted counsel for Carrizales on several
occasions between March 2016 and August 2017. The motion
claimed that the doctors’ counsel asked that Carrizales’ counsel
- 305 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296provide dates on which Duboe could be deposed, but that no
deposition was ever scheduled.
In response to the doctors’ September 2017 motion to strike,
the district court issued an order on February 22, 2018. The
order did not grant the motion to strike, but directed that
Carrizales “shall within 14 days from the date hereof find
and determine dates upon which [Duboe] can be available for
deposition, which dates must be reasonably agreeable to [the
doctors].” It also provided that “[s]aid deposition must be taken
and concluded within two months from the date hereof.” The
order expressly warned that if “said deposition is not com-
pleted within two months from the date hereof, the Court will
strike [Duboe] as an expert witness.”
On May 3, 2018, the doctors filed another motion to strike
Duboe as an expert witness, asserting that Duboe’s deposi-
tion had not been taken and dates had not been identified for
such a deposition. At the hearing on this motion to strike,
the doctors offered and the district court received copies
of cor­respondence exchanged by counsel for the doctors,
Carrizales, and Creighton University Medical Center after the
district court’s order on the initial motion to strike. The corre­
spondence included a letter from counsel for the doctors dated
February 23, 2018, identifying several dates in March and
April on which he would not be available for a deposition; a
copy of an email dated March 8, 2018, from Carrizales’ counsel
in which he asked the other attorneys if they would be avail-
able on April 23 to 25 for a deposition of Duboe and advised
that there were limited days on which both he and counsel
for the doctors were available; an email dated March 9, 2018,
from Carrizales’ counsel stating that he was also available for
a deposition of Duboe on April 11; an email dated March 9,
2018, from counsel for the doctors saying that he would be
available on April 23 and 24, but not April 11; and an email
dated March 13, 2018, from counsel for Creighton University
Medical Center stating that she was available for a deposition
on April 23 and 24.
- 306 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296The district court also received at the hearing an affidavit
from Carrizales’ counsel. In the affidavit, he stated that by the
time April 23 and 24, 2018, were identified as feasible dates
for defense counsel, Duboe advised counsel for Carrizales
that he was no longer available on those dates. Counsel for
Carrizales also stated in his affidavit that while the first motion
to strike, filed in September 2017, was pending, he sent an
email to defense counsel indicating that Duboe would be avail-
able for a deposition on October 10, but that counsel for the
doctors replied that he wanted to “wait and see what happens”
at the hearing on the motion to strike.
The district court entered an order granting the motion to
strike Duboe as an expert witness.
(b) Standard of Review
[4-6] Generally, the control of discovery is a matter for
judicial discretion, and decisions regarding discovery will be
upheld on appeal in the absence of an abuse of discretion.
Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017).
Similarly, appellate review of a district court’s use of inherent
power is for an abuse of discretion. Id. An abuse of discretion
occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence. Id.(c) Analysis
Carrizales contends that the district court erred by striking
Duboe as an expert witness. She first argues that the district
court could not strike Duboe’s testimony because the doctors
never served a notice of deposition or subpoena upon him.
Alternatively, she argues that the district court’s order striking
Duboe was unduly harsh.
We begin by addressing Carrizales’ argument that the dis-
trict court could not strike Duboe’s testimony because the
doctors did not serve a notice of deposition or subpoena
upon him. In support of this argument, Carrizales points to
- 307 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296decisions in which courts have held that sanctions cannot
be imposed under provisions analogous to Neb. Ct. R. Disc.
§ 6-337 (Rule 37) for a deponent’s nonappearance at a deposi-
tion if the deponent was not compelled to appear by a proper
subpoena. See, e.g., Laws v. Louisville Ladder, Inc., 146 So.
3d 380 (Miss. App. 2014). We find those cases inapposite,
because, as we will explain, we disagree that the district
court order striking Duboe’s testimony was issued as a Rule
37 sanction.
[7] Rule 37 provides “a range of sanctions” that a court may
impose for specific violations of discovery rules. See John P.
Lenich, Nebraska Civil Procedure, § 28:2 at 1199 (2022). In
this case, Carrizales does not appear to have committed any
of those violations. But Rule 37 sanctions are not the only
tool trial courts have to manage discovery. Nebraska courts,
through their inherent judicial power, have the authority to do
all things necessary for the proper administration of justice.
Putnam, supra. We have recognized that this inherent power
authorizes trial courts to issue and enforce progression orders
related to discovery. See id. Indeed, we have noted that trial
courts are encouraged to issue and enforce such orders in order
to meet case progression standards adopted by this court and
that members of the bar are responsible for cooperating with
the judiciary in attempting to meet these standards. See id., cit-
ing Neb. Ct. R. § 6-101(B)(5) and (C) (rev. 2013).
We understand the district court’s February 22, 2018, order
to have been a type of progression order—it ordered deadlines
by which the parties were to identify dates for Duboe’s deposi-
tion and by which the deposition was to be completed. It also
specified that if the deposition was not completed by the dead-
line, Duboe would not be permitted to testify. We understand
the district court to have enforced that order when it issued its
subsequent order striking Duboe’s testimony.
The fact that the district court’s orders concerning Duboe’s
deposition were issued pursuant to its inherent power does
not shield them from all review. A trial court’s exercise of its
- 308 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296inherent power is reviewed for an abuse of discretion. See
Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017).
We have emphasized, however, that this is “a fairly deferential
standard” and that a court abuses its discretion “when its deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.” Id. at 878, 902 N.W.2d at 146 (emphasis in
original). We have also recognized that a trial court has broad
discretion to make discovery and evidentiary rulings condu-
cive to the conduct of a fair trial. Id. We find that neither the
district court’s February 22, 2018, order nor its subsequent
order striking Duboe as an expert witness was an abuse of this
broad discretion.
By February 22, 2018, the lawsuit had been pending for
over 4 years and Carrizales’ expert witness had not yet been
deposed. Case progression standards adopted by this court
provide that 98 percent of civil jury cases are to be disposed of
within 18 months of filing. See § 6-101(A). It appears that the
district court could have and should have done more at earlier
stages in this case to expedite its completion. But even if the
district court’s initial case management efforts were wanting,
we do not believe that precluded the district court from even-
tually taking steps to hasten the resolution of a case that had
been pending for over twice as long as our case progression
standards state the vast majority of cases of this type should.
Specifically, we do not find it unreasonable that the district
court imposed a relatively short deadline by which the parties
were required to identify dates when Duboe could be deposed
and to complete the deposition. We reach this conclusion even
assuming Carrizales was not solely to blame for the fact that
Duboe had not yet been deposed or for the overall delay in
bringing this case to completion.
As for the district court’s order striking Duboe as an expert
witness, we cannot, under the circumstances, say that was an
abuse of discretion either. The district court’s February 22,
2018, order required Carrizales to, within 14 days from the
- 309 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296date of the order, identify dates within the next 2 months in
which both Duboe and the defendants’ counsel were avail-
able for Duboe’s deposition to be taken. The evidence in our
record demonstrates that Carrizales did not comply with this
portion of the order. The evidence shows that the only dates
Carrizales’ counsel identified on which both he and defense
counsel would be available were April 23 and 24, 2018.
Setting aside the fact that April 23 and 24 were just outside
the district court’s 2-month deadline, counsel for Carrizales
stated in his affidavit that by the time both defense counsel
confirmed they would be available on those dates, counsel for
Carrizales learned Duboe was no longer available.
We would perhaps have a different case before us if, after
failing to identify dates in which Duboe and the necessary
lawyers were available for Duboe to be deposed, counsel for
Carrizales had promptly alerted the district court of the dif-
ficulty of complying with its order. There is nothing in our
record, however, showing that counsel for Carrizales did any-
thing to bring the issue to the attention of the district court
until the doctors filed a motion to strike in May 2018. By that
time, more than 2 months had passed and Duboe still had not
been deposed. Only then did the district court do what it said it
would do in its February 22, 2018, order and strike Duboe as
an expert witness.
Under these circumstances, we do not believe that the
district court’s decision to strike Duboe as an expert witness
was based on reasons that were untenable or unreasonable.
See Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140(2017). Neither can we find that the district court’s action was
clearly against justice or conscience, reason, and evidence.
See id. Rather, it appears that the district court concluded that
Carrizales had not complied with its earlier order and had not
offered a compelling reason for noncompliance, and therefore,
it enforced the order in the manner it said that it would. We
find no abuse of discretion.
- 310 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 2963. Summary Judgment
(a) Factual Background
Shortly after the district court issued its order striking Duboe
as an expert witness, Creighton University Medical Center
and the doctors filed motions for summary judgment. Prior to
the hearing on the motion for summary judgment, Carrizales
voluntarily dismissed her case against Creighton University
Medical Center.
At the hearing on the doctors’ motion for summary judg-
ment, they offered, among other things, an affidavit of Gray.
Gray’s affidavit stated that she, Wulf, and Arms provided
medical care to Carrizales in connection with the birth of
Carrizales’ daughter; that Gray was familiar with the allega-
tions in Carrizales’ complaint; that she was familiar with the
standard of care required of physicians monitoring the labor of
patients and the delivery of children; and that based upon her
review of the medical records, her personal knowledge, and
her training, education, and experience, she, Wulf, and Arms
met the applicable standard of care in treating Carrizales and
Carrizales’ daughter.
Carrizales objected to the receipt of Gray’s affidavit, argu-
ing that the doctors failed to designate her as an expert witness
and that her testimony lacked foundation. In opposition to
the motion for summary judgment, Carrizales offered, among
other things, various discovery responses of the doctors, por-
tions of a deposition of Gray, portions of a deposition of a
midwife who provided care to Carrizales during the labor and
delivery, and an affidavit of Carrizales. Carrizales also offered
an affidavit of Duboe in which Duboe averred that the doctors
breached the standard of care during the labor and delivery
process. The district court sustained the doctors’ objection to
Duboe’s affidavit, referring to its earlier ruling striking Duboe
as an expert witness.
The district court issued an order granting the doctors’
motion for summary judgment. The district court concluded
that Gray’s affidavit could be considered for purposes of the
- 311 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296doctors’ summary judgment motion and that it was sufficient
to make a prima facie case that each of the doctors met the
applicable standard of care. The district court then found that
Carrizales failed to create a genuine issue of material fact as to
whether the doctors met the standard of care. It explained that
in order to create a genuine issue of material fact as to whether
the doctors breached the standard of care, Carrizales was
required to provide expert testimony contradicting Gray’s testi-
mony that the doctors had met the standard of care. The district
court stated that it had stricken Duboe as an expert witness and
that Carrizales had failed to provide other expert testimony that
would create a genuine issue of material fact.
(b) Standard of Review
[8] An appellate court affirms a lower court’s grant of sum-
mary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to
the ultimate inferences that may be drawn from the facts and
that the moving party is entitled to judgment as a matter of law.
Lassalle v. State, 307 Neb. 221, 948 N.W.2d 725 (2020).
[9] An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. Id.(c) Analysis
Carrizales argues on appeal that the district court erred both
by finding that Gray’s affidavit established a prima facie case
that the doctors met the standard of care and by finding that
Carrizales failed to present evidence showing the existence of
a genuine issue of material fact. We address each of these argu-
ments below.
[10] At the summary judgment stage, it is well settled that
a physician’s self-supporting affidavit suffices to make a prima
facie case that the physician did not commit medical malprac-
tice. Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630- 312 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296(2018). Carrizales contends that because of certain discovery
responses provided by the doctors and certain testimony in
Gray’s deposition, however, the district court should not have
found that Gray’s affidavit made such a prima facie case here.
As we will explain, we disagree.
Carrizales first argues that the doctors should not have been
permitted to rely on Gray’s affidavit because they failed to
designate her as an expert witness. In support of this argu-
ment, Carrizales argues that if the doctors desired to rely on
an affidavit from Gray in support of their motion for summary
judgment, they were obligated to disclose their intention to
do so in discovery. Specifically, Carrizales argues that the
doctors did not disclose their intention to rely on Gray as an
expert in their expert witness designation, in response to vari-
ous requests for production of documents, and in response to
interrogatories.
We are not persuaded that the doctors were required to dis-
close an intention to rely on Gray for purposes of summary
judgment. The interrogatories Carrizales relies on sought the
identity of persons the doctors expected or intended to call
“at the trial.” The doctors’ expert witness designation likewise
identified those experts “who will be called to testify on behalf
of [the doctors] at a trial of this case.” The doctors did not
seek to call Gray as a witness at trial; they offered her affidavit
in support of their motion for summary judgment. As for the
doctors’ responses to Carrizales’ requests for production, the
requests for production at issue sought reports of or commu-
nications with experts the doctors either “retained” or “com-
missioned.” Carrizales has not directed us to anything in our
record suggesting that Gray, a party to the case, was retained
or commissioned as an expert witness, and even assuming she
was, Carrizales has not shown that the doctors failed to pro-
duce documents responsive to these requests.
Carrizales also argues that even if Gray’s affidavit could
shift the burden to Carrizales as to the claim against Gray, it
could not do so with respect to the claims against the other
- 313 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296doctors. On this point, however, Carrizales argues only that the
other doctors also did not identify Gray in response to inter-
rogatories seeking the identity of persons the other doctors
expected or intended to call at trial. As mentioned above, Gray
was not called as a witness at trial.
Carrizales next contends that Gray’s affidavit testimony
lacked adequate foundation. In support of this argument,
Carrizales relies primarily on portions of Gray’s deposition
testimony. Gray stated in that deposition that she lacked an
independent recollection of Carrizales’ labor apart from her
medical records. She also stated that she had not reviewed the
medical records of Carrizales’ daughter and did not have an
opinion as to whether Carrizales’ daughter suffered an injury
on the day she was born. Counsel for the doctors also stated
during the deposition that Gray would not be expressing an
opinion as to what caused Carrizales’ daughter’s current con-
dition. Carrizales argues that these statements showed Gray
lacked adequate foundation to provide an opinion that she and
the other doctors met the standard of care. We disagree.
[11] A court should not admit expert testimony if it appears
the witness does not possess facts that will enable him or her
to express an accurate conclusion, as distinguished from a mere
guess or conjecture. Orchard Hill Neighborhood v. Orchard
Hill Mercantile, 274 Neb. 154, 738 N.W.2d 820 (2007). Gray
may have needed to rely on medical records to assess the care
provided by the doctors, and she may not have formed opinions
as to whether Carrizales’ daughter was injured or the causation
thereof, but we do not believe any of this would preclude her
from offering an accurate conclusion as to whether the doctors
met the standard of care.
Finally, Carrizales contends that the district court should not
have granted summary judgment to the doctors because she
offered evidence that created a genuine issue of material fact.
Gray’s affidavit shifted the burden to Carrizales to produce
admissible evidence that would create a genuine issue of mate-
rial fact as to whether the doctors complied with the standard
- 314 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296of care. See Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d
630 (2018). Generally, expert testimony from a medical profes-
sional is required to establish the standard of care in a medical
malpractice action. See id. The only expert opinion Carrizales
offered that contradicted Gray’s standard of care opinion was
expressed by Duboe. As we have already concluded, however,
the district court acted within its discretion when it precluded
Carrizales from relying on Duboe as an expert.
There is an exception to the general rule requiring expert
testimony as to the medical standard of care. Under the com-
mon knowledge exception, expert testimony is not required
where a layperson with common knowledge can infer neg-
ligence. See, e.g., Green v. Box Butte General Hosp., 284
Neb. 243, 818 N.W.2d 589 (2012). Although Carrizales does
not rely expressly on this exception, she claims that other
evidence in the summary judgment record besides Duboe’s
affidavit created a genuine issue of material fact. She points
to statements in her own affidavit that she was told during
her labor she would undergo a cesarean section but that the
procedure was never performed. She also directs us to depo-
sition testimony of a midwife involved in Carrizales’ labor
and delivery who disagreed with Gray’s deposition testimony
that Gray was merely a consulting physician. The midwife
testified to her belief that Gray was supervising the midwife.
None of this evidence, however, can create a genuine issue
of material fact as to whether the doctors complied with the
standard of care. There is no expert testimony contradicting
Gray’s opinion that the doctors met the standard of care, and
we do not believe a layperson could infer negligence under
these circumstances.
We find no merit to Carrizales’ arguments that the district
court erred by granting summary judgment to the doctors.
4. Motion to Alter or Amend
Carrizales also argues that the district court erred by deny-
ing her motion to alter or amend. In support of her contention
- 315 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296that the district court should have granted her motion to alter
or amend, Carrizales merely repeats the arguments we have
already rejected above. We find no error in the district court’s
denial of the motion to alter or amend.
IV. CONCLUSION
Because we find no error on the part of the district court,
we affirm.
Affirmed.