Konsul v. Asensio , 316 Neb. 874 ( 2024 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/10/2024 06:08 PM CDT
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
KONSUL V. ASENSIO
Cite as 316 Neb. 874Ivan J. Konsul, appellant, v.
Juan Antonio Asensio, M.D., appellee.
___ N.W.3d ___
Filed June 14, 2024. No. S-23-441.
1. Pretrial Procedure: Appeal and Error. Generally, the control of
discovery is a matter for judicial discretion, and decisions regard-
ing discovery will be upheld on appeal in the absence of an abuse of
discretion.
2. Judgments: Statutes: Appeal and Error. When an appeal calls for
statutory interpretation or presents questions of law, an appellate court
must reach an independent, correct conclusion irrespective of the deter-
mination made by the court below.
3. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
de novo whether the trial court applied the correct legal standards for
admitting an expert’s testimony, and an appellate court reviews for
abuse of discretion how the trial court applied the appropriate standards
in deciding whether to admit or exclude an expert’s testimony.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
5. Directed Verdict. A directed verdict is proper at the close of all the evi-
dence only when reasonable minds cannot differ and can draw but one
conclusion from the evidence, that is, when an issue should be decided
as a matter of law.
6. Directed Verdict: Appeal and Error. In reviewing a trial court’s rul-
ing on a motion for directed verdict, an appellate court must treat the
motion as an admission of the truth of all competent evidence submitted
on behalf of the party against whom the motion is directed; such being
the case, the party against whom the motion is directed is entitled to
have every controverted fact resolved in its favor and to have the benefit
of every inference which can reasonably be deduced from the evidence.
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Cite as 316 Neb. 8747. Rules of the Supreme Court: Pretrial Procedure. Inasmuch as the
Nebraska Court Rules of Discovery in Civil Cases are generally and
substantially patterned after the corresponding discovery rules in the
Federal Rules of Civil Procedure, Nebraska courts will look to federal
decisions interpreting corresponding federal rules for guidance in con-
struing similar Nebraska rules.
8. Trial: Expert Witnesses: Proof. It is the burden of the proponent of
expert testimony to establish the necessary foundation for its admission.
9. Malpractice: Physicians and Surgeons: Expert Witnesses. Expert tes-
timony offered to establish the standard of care in a medical malpractice
case is admissible only if its proponent can demonstrate the expert’s
familiarity with the relevant standard of care in the defendant’s com-
munity or a similar community.
10. ____: ____: ____. Expert testimony concerning the standard of care in a
medical malpractice case 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.
11. Trial: Expert Witnesses. Where an expert’s opinion is mere speculation
or conjecture, it is irrelevant and cannot assist the trier of fact.
12. Malpractice: Physicians and Surgeons: Expert Witnesses: Proof. The
burden is on the proponent of standard-of-care testimony to demonstrate
that the expert is familiar with the customary practice among physicians
in the defendant’s community or a community that is similar in terms
of available resources, facilities, personnel, practices, and other medi-
cally relevant factors. If a party cannot demonstrate his or her expert’s
familiarity with such standard of care, then the expert’s testimony is
properly excluded.
13. Malpractice: Physician and Patient: Proximate Cause: Expert
Witnesses. To make a prima facie case for medical malpractice, a
plaintiff must show (1) the applicable standard of care, (2) that the
defendant(s) deviated from that standard of care, and (3) that this devia-
tion was the proximate cause of the plaintiff’s harm. Generally, expert
testimony is required on each element.
Appeal from the District Court for Douglas County, Jeffrey
J. Lux, Judge. Affirmed.
Steven H. Howard, of Steve Howard Law, P.C., L.L.O., for
appellant.
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KONSUL V. ASENSIO
Cite as 316 Neb. 874Cathy S. Trent-Vilim, Patrick G. Vipond, and Olivia R.
McDowell, of Lamson, Dugan & Murray, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Ivan J. Konsul appeals the order of the district court for
Douglas County that dismissed with prejudice his medical
malpractice action against Juan Antonio Asensio, M.D. Konsul
claims, inter alia, that the district court erred when it sustained
Asensio’s objection to testimony by Konsul’s expert witness
on the basis that the witness did not provide sufficient founda-
tion to provide standard-of-care testimony. Konsul also claims
the court erred in its rulings regarding Asensio’s refusal during
a deposition to answer certain questions regarding standards
of care relative to the performance of other medical care pro-
viders. Although we determine that the court erred in its rul-
ings regarding Asensio’s deposition, such error was harmless
because we ultimately determine that the court correctly ruled
that there was not sufficient foundation for Konsul’s expert
witness to provide standard-of-care testimony. Therefore,
granting a directed verdict and dismissal was proper due to
Konsul’s failure to provide evidence of the standard of care.
We affirm the dismissal of Konsul’s action.
STATEMENT OF FACTS
In November 2017, Konsul filed a complaint pursuant to the
Nebraska Hospital-Medical Liability Act against Asensio and
two other doctors. The two other doctors were later dismissed
from the action, and in September 2019, Konsul filed the
operative amended complaint that named Asensio as the sole
defendant.
The claim arose from treatment Konsul received after being
admitted to Creighton University Medical Center (Creighton)
in Omaha, Nebraska, following a motor vehicle accident on
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KONSUL V. ASENSIO
Cite as 316 Neb. 874November 12, 2015. Konsul was hospitalized for approxi-
mately 3 weeks, and during that time, he was treated by a
team of doctors, including Asensio, who is a trauma surgeon.
Following chest surgery to address multiple rib fractures,
Konsul developed symptoms, including pain in the right ankle.
An ultrasound was performed and showed that Konsul had
acute right occlusive deep vein thrombosis, and a chest CT
scan showed evidence of pulmonary emboli. The medical
team determined that an inferior vena cava filter (IVC fil-
ter) should be placed to prevent migration of the deep vein
thrombosis. On November 27, Asensio and a resident doctor
performed surgery to place the IVC filter. When Konsul was
later discharged from the hospital, Asensio signed discharge
paperwork.
In the amended complaint, Konsul set forth claims that
Asensio had committed medical malpractice and that Asensio
had failed to obtain Konsul’s informed consent before he
placed the IVC filter. Konsul alleged that Asensio had violated
applicable standards of care in various respects, including,
inter alia, unnecessary placement of the filter, improper and
inaccurate location of the filter, failing to warn Konsul of the
long-term risks of the filter remaining in his body, failing to
formulate and communicate an appropriate plan for timely
and safe retrieval and removal of the filter, failing to inform
Konsul and Konsul’s other medical care providers of the need
for evaluation and potential removal of the filter, and “[a]ban-
doning” Konsul 1 week after placement of the filter without
informing Konsul or the other medical care providers that he
did not intend to provide further treatment.
Konsul alleged that because of Asensio’s failures, the filter
was allowed to remain in his body for a prolonged period,
beyond the time for safe removal of the filter. Konsul alleged
that the filter had migrated throughout his body and became
lodged behind his heart. Konsul alleged that other medi-
cal care providers had unsuccessfully attempted to remove
the filter and that it was now permanently lodged behind
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Cite as 316 Neb. 874his heart. Konsul alleged that but for Asensio’s violation of
applicable standards of care, the filter could have been timely
removed, and would not have migrated to the position behind
his heart, and he would not have suffered damages, including
physical pain, mental suffering, and additional health care
costs. Konsul alleged that because of the position of the filter
behind his heart, the filter could move or migrate and could
potentially kill him at any moment. He alleged that because
he was aware of this possibility, he lives with “fear of instant
death” and mental suffering.
In January 2019, Asensio filed a motion for summary judg-
ment. In support of the motion, Asensio submitted an affidavit
in which he set forth his education, training, and experience
and his familiarity with the standard of care in Omaha. In
the affidavit, Asensio opined that he had met the applicable
standard of care in his treatment of Konsul and was not the
proximate cause of any of Konsul’s alleged damages. The dis-
trict court deferred ruling on Asensio’s motion for summary
judgment until further discovery was conducted.
As part of discovery, Asensio was deposed by Konsul on
April 30, 2019. At the time of the deposition, Konsul had
not yet dismissed the other defendants and had not yet filed
the operative amended complaint. Konsul’s questioning of
Asensio began by covering Asensio’s medical training and
background and continued to Asensio’s treatment of Konsul.
Asensio generally stated that, regarding the IVC filter that he
had placed, he had met the applicable standard of care relating
to placement of the filter. In response to a question whether
the filter was intended to be permanent or temporary, Asensio
stated that he had been asked to place the filter and that “then,
subsequently, that determination [of whether the filter would
be permanent or temporary] was made by others that provided
that particular care.” Asensio further stated that the “filter
was placed to be able to prevent [Konsul] from having further
pulmonary emboli” and that the decision whether the filter
would be permanent or temporary “could have gone either
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KONSUL V. ASENSIO
Cite as 316 Neb. 874way.” Asensio later stated that “other continuing postoperative
care was rendered by [Konsul’s] attending trauma surgeon of
record, and those decisions [regarding removal of the filter], if
they were made, [he] was not privy to them.”
At certain points in the deposition, Konsul asked questions
regarding the medical care provided by other doctors, and
Asensio’s counsel objected and advised Asensio not to answer
the questions. At one point, Konsul asked Asensio, “Are you
aware of any standard of care violations committed by any of
your colleagues?” Asensio’s counsel stated, “Well, I guess I’ll
object. I don’t know that he’s got to be your expert on any of
that subject.” Konsul’s counsel asked what the objection was,
and Asensio’s counsel replied, “That you’re making an expert
witness out of the defendant.”
After further discussion, Konsul asked Asensio, “Doctor, are
you going to come to trial and say that some other member of
the team failed to meet the standard of care?” Asensio’s coun-
sel instructed Asensio to not answer the question. Konsul’s
counsel initially stated, “I think we’ll convene the deposition
and take this before the Court then.” After discussion with
Asensio’s counsel, Konsul’s counsel decided to continue the
deposition and to certify the questions Asensio refused to
answer for review by the court.
At several later points in the deposition, Konsul asked ques-
tions regarding the standard of care of other doctors, to which
Asensio’s counsel advised Asensio not to answer, and Konsul
indicated the questions would be certified for review by the
court. The questions included the following: “So do you fault
[the facility to which Konsul was discharged] for not making
plans to remove the filter?” “Whether you’ll answer it or not,
do you know whether or not another health care provider for
. . . Konsul violated a standard of care?” “Doctor, have you
had moments when you were concerned about the standard
of care of a colleague in your career?” “Whose job was it to
make arrangements for the filter removal?” Other questions
certified by Konsul included the following: “Are you aware
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Cite as 316 Neb. 874of this patient in any way being noncompliant or negligently
contributing to the malplacement of the IVC filter?” “Can
you agree that the negligence of more than one health care
provider may, at times, lead to a single untoward outcome for
the patient?”
On July 10, 2019, the district court ruled on a motion
filed by Asensio in which he sought to prevent Konsul from
“soliciting” Asensio’s opinion as to any deviation from the
standard of care by any other medical care provider who had
provided medical care to Konsul. The court stated that Asensio
had based his motion on attorney-client privilege. The court
found that Asensio was justified in raising the privilege, and it
therefore granted Asensio’s motion and ordered that any future
deposition should be limited accordingly.
After further proceedings and after the original judge
assigned to this case retired and was replaced by another
judge, Konsul filed a motion in February 2022 for the court
to reconsider and reverse its ruling in the July 10, 2019,
order. In the alternative, Konsul moved for an order in limine
restricting Asensio from providing expert testimony on stan-
dard of care.
After briefing and oral argument, the court entered an
order on January 13, 2023, ruling on Konsul’s motions. The
court first rejected Konsul’s argument to the effect that dur-
ing the deposition, Asensio did not follow Neb. Ct. R. Disc.
§ 6-330 (rev. 2016) (Rule 6-330), which requires a statement
of the basis of an objection to a question and provides that
a deponent may be instructed not to answer a question only
when necessary for certain purposes, including to preserve
a privilege. The court reasoned that although there was not
a statutory privilege that specifically encompassed the situa-
tion, Asensio’s counsel had adequately articulated a basis for
refusal to answer Konsul’s questions regarding the standard
of care of other medical care providers when counsel stated
that Asensio would not be an expert witness for Konsul. The
court cited Neb. Rev. Stat. § 27-501 (Reissue 2016), which
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KONSUL V. ASENSIO
Cite as 316 Neb. 874generally states that no person has the privilege to refuse to
be a witness except as otherwise provided by law. The court
also cited Neb. Rev. Stat. § 27-706 (Reissue 2016), which
provides for court appointment of an expert witness but also
provides that “[a]n expert witness shall not be appointed by
the judge unless he consents to act.” The court read Konsul’s
motion essentially as a request to appoint Asensio as an expert
witness who would give an opinion regarding whether there
was a deviation from the standard of care by the other medi-
cal care providers involved in this case. The court stated that
the record established that Asensio did not consent to being
an expert witness for this purpose. The court further reasoned
that Asensio’s testimony that he did not personally deviate
from the standard of care could not be characterized as his
consent to be an expert witness regarding the other medical
care providers. The court appeared to agree with Asensio that
he was privileged not to answer certain questions and declined
to order Asensio to answer Konsul’s questions regarding the
standard of care applicable to the other medical care provid-
ers. The court rejected Konsul’s other arguments, and it there-
fore overruled Konsul’s motion for reconsideration or for an
order in limine.
The case went to a jury trial in May 2023. Evidence pre-
sented by Konsul in his case in chief included Konsul’s own
testimony. Konsul also called as a witness the doctor who had
unsuccessfully attempted to remove the IVC filter. This doctor
testified solely as a fact witness, and Konsul did not attempt to
establish the doctor as an expert witness or to elicit testimony
regarding the standard of care applicable to Asensio. Konsul
played portions of Asensio’s videotaped deposition, but he did
not call Asensio as a witness.
Konsul also called as a witness Dr. David Dreyfuss, who
was intended to provide expert testimony regarding the stan-
dard of care applicable to Asensio. Dreyfuss began by tes-
tifying regarding his general background and qualifications,
including his education, training, and experience. Dreyfuss
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Cite as 316 Neb. 874testified that after completing residencies and fellowships in
Vermont and New Jersey, he had practiced in Binghamton,
New York, since 1987. Dreyfuss testified specifically regard-
ing his experience placing and removing IVC filters. Dreyfuss
testified that to prepare to testify in the present case, he had
reviewed materials in the case, including, inter alia, depo-
sitions of Asensio and Konsul and medical records from
Konsul’s hospitalization. Dreyfuss responded in the affirma-
tive to Konsul’s question whether he was “prepared to tender
opinions under a certain definition of standard of care here
in Nebraska.”
When Konsul asked Dreyfuss to tell the jury his opinions
regarding the standard of care in this case, Asensio requested
a foundational voir dire before Dreyfuss gave his opinions.
Asensio elicited testimony that Dreyfuss was not licensed to
practice medicine in Nebraska, had not practiced medicine
or trauma surgery in Nebraska, had spent his entire career in
New York, and had never been in Omaha before the day of the
trial. Dreyfuss testified that he was familiar with the existence
of Omaha and Creighton but that he was not familiar with
them in the sense that he did not know “anything substan-
tive about them.” In response to Asensio’s question, Dreyfuss
agreed that in preparing to testify in this case, he had not
come to Omaha or done any investigation into Creighton’s
medical center as to its facilities, personnel, and practices. At
the end of this questioning, Asensio asked the court to strike
Dreyfuss as an expert witness on the basis that Dreyfuss did
not have sufficient foundation to give an opinion regarding the
standard of care in Omaha. Asensio cited this court’s decision
in Carson v. Steinke, 314 Neb. 140, 989 N.W.2d 401 (2023),
which had been filed on May 5, 2023, less than 1 week before
the trial began.
The court allowed Konsul to question Dreyfuss to pro-
vide further foundation. Dreyfuss testified that regarding the
issues in this case, there was a national standard of care that
was “the same in Omaha as it is in Binghamton as it was in
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Cite as 316 Neb. 874Vermont and New Jersey when [he] trained.” When Konsul
attempted to question Dreyfuss regarding the national stan-
dard of care, Asensio objected based on foundation. In a
sidebar conference, the court and counsel discussed Carson
v. Steinke, and the court set forth its understanding of how
it should be applied to the present case. Konsul continued
questioning Dreyfuss to attempt to elicit the necessary foun-
dation. Dreyfuss testified that he had given expert testimony
in communities that he considered similar to Omaha, and he
specifically identified “New York City; Philadelphia; Miami
. . . ; Tampa, Florida — several large cities throughout the
country — Las Vegas, Nevada.” Konsul questioned Dreyfuss
regarding what he learned about medical resources in Omaha
by reviewing the records in this case. He testified, inter alia,
that “[t]here was never any mention of any equipment not
being available,” and he specifically noted that a “filter was
readily available.” Dreyfuss testified that facilities available
in Omaha were “wonderful and exemplary” and that medical
personnel at Creighton included “the full gamut of very quali-
fied people.” Dreyfuss testified that he was familiar with the
resources, facilities, personnel, and practices in communities
similar to Omaha, including those he had listed earlier.
After various additional attempts by Konsul to establish
foundation and further objections by Asensio, the court ulti-
mately granted Asensio’s motion to strike Dreyfuss as an expert
witness. The court reasoned that under Carson v. Steinke, “in
order to get to universal standard of care,” the witness needs
to have “personal knowledge” of the practice of medicine
in a specific locality. The court stated that Dreyfuss had not
“availed himself of doing an investigation to find out what
the standard of care is [in Omaha] and to find out what this
community offers in terms of available facilities, personnel,
equipment, or practices” and that Dreyfuss’ “only information
is what he read regarding what facility was available, what
personnel was available, what equipment was available, and
what practice was available in this one particular case.” The
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Cite as 316 Neb. 874court stated that Dreyfuss needed the understanding of what
was available in Omaha to say that the standard of care in
another community “would be the same as Omaha’s standard
of care” and that such standard is “equal to what he’s say-
ing the national standard is.” Based on this reasoning, the
court sustained Asensio’s foundation objection and ruled that
Dreyfuss was not competent to testify as to standard of care
and that any such testimony would be excluded.
Thereafter, Konsul rested his case in chief, and Asensio
moved for a directed verdict on the basis that there was not
sufficient evidence of the standard of care, deviation from the
standard of care, or causation. The district court sustained the
motion for directed verdict and reasoned that because Konsul
had provided no admissible expert testimony on the standard
of care, which was a necessary element of his claim, reason-
able minds could not differ that he had not proved his claim.
The court filed an order of dismissal dated May 11, 2023, in
which it set forth its reasoning for striking Dreyfuss’ expert
testimony on standard of care and for determining that a ver-
dict should be directed against Konsul. The court dismissed
Konsul’s complaint with prejudice.
Konsul appeals the order that granted a directed verdict and
dismissed his complaint with prejudice.
ASSIGNMENTS OF ERROR
Konsul generally claims that the district court erred when it
overruled his motion for reconsideration of its rulings regard-
ing the deposition of Asensio. He specifically claims that
the district court erred when it treated Konsul’s questioning
of Asensio as a request to appoint Asensio as an expert wit-
ness under § 27-706 and when it interpreted the statute as
providing a privilege for a party-opponent who had already
established himself as an expert witness. He further spe-
cifically claims that the court erred when it ruled that, under
Rule 6-330, the instructions by Asensio’s counsel to Asensio
not to answer certain questions were a proper assertion of a
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Cite as 316 Neb. 874privilege. Konsul also claims the district court erred when it
struck Dreyfuss as an expert witness based on the locality rule
and when it thereafter granted Asensio’s motion for directed
verdict based on Konsul’s failure to provide evidence of the
standard of care and dismissed the case.
STANDARDS OF REVIEW
[1,2] 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.
Timothy L. Ashford, PC LLO v. Roses, 313 Neb. 302, 984
N.W.2d 596 (2023). However, the district court’s rulings relat-
ing to depositions taken during discovery in this case involve
statutory interpretation. When an appeal calls for statutory
interpretation or presents questions of law, an appellate court
must reach an independent, correct conclusion irrespective of
the determination made by the court below. In re Interest of
Jessalina M., 315 Neb. 535, 997 N.W.2d 778 (2023).
[3,4] We review de novo whether the trial court applied the
correct legal standards for admitting an expert’s testimony, and
we review for abuse of discretion how the trial court applied
the appropriate standards in deciding whether to admit or
exclude an expert’s testimony. Carson v. Steinke, 314 Neb.
140, 989 N.W.2d 401 (2023). 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 jus-
tice or conscience, reason, and evidence. Id.[5,6] A directed verdict is proper at the close of all the evi-
dence only when reasonable minds cannot differ and can draw
but one conclusion from the evidence, that is, when an issue
should be decided as a matter of law. Id. In reviewing a trial
court’s ruling on a motion for directed verdict, an appellate
court must treat the motion as an admission of the truth of all
competent evidence submitted on behalf of the party against
whom the motion is directed; such being the case, the party
against whom the motion is directed is entitled to have every
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Cite as 316 Neb. 874controverted fact resolved in its favor and to have the benefit
of every inference which can reasonably be deduced from the
evidence. Id.ANALYSIS
Deposition Questions.
Konsul assigns error to the court’s overruling of his motion
for reconsideration and its resolution of issues therein related
to the deposition of Asensio. He specifically argues that the
court failed to enforce Rule 6-330, which he contends prohib-
ited Asensio’s counsel from instructing Asensio not to answer
certain of Konsul’s questions. Konsul contends that the court
erred in its reasoning when it treated Konsul’s questioning of
Asensio as a request under § 27-706 to appoint Asensio as an
expert witness and when it treated Asensio’s objection to the
questioning as the assertion of a privilege under § 27-706. We
agree with Konsul’s contentions that directing Asensio not to
answer was not warranted and that the approval thereof by the
district court based on assertion of a privilege was erroneous.
We determine that § 27-706 did not set forth a privilege under
these circumstances and, moreover, that Asensio’s objection
based on § 27-706 did not constitute the proper assertion
of a privilege that would have allowed Asensio’s counsel to
instruct Asensio not to answer the questions. As we explain
later in our analysis, we determine that although there were
errors surrounding the district court’s rulings regarding the
deposition issue, they prove to be harmless.
We first examine Rule 6-330, which governs the taking
of depositions during discovery. Subsection (c) addresses the
conduct of examination and cross-examination, and subsec-
tion (c)(1) provides, in relevant part, that “[a]ll objections
made at time of the examination . . . to the evidence pre-
sented . . . shall be noted by the officer upon the deposition”
and that “[e]vidence objected to shall be taken subject to the
objections.” Subsection (c)(2) provides, “An objection must
be stated concisely in a nonargumentative and nonsuggestive
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Cite as 316 Neb. 874manner. A person may instruct a deponent not to answer only
when necessary to preserve a privilege, to enforce a limitation
ordered by the court, or to present a motion under Rule 30(d).”
Subsection (d) provides, in part, that
the deponent or a party may move to terminate or limit
the deposition on the ground that (1) it is being con-
ducted in bad faith or in a manner that unreasonably
annoys, embarrasses, or oppresses the deponent or party
or (2) the interpreter is not rendering a reasonably com-
plete and accurate interpretation or is repeatedly altering,
omitting, or adding things, including explanations, to
what is stated.
[7] Rule 6-330(c)(2) mirrors Fed. R. Civ. P. 30(c)(2).
Inasmuch as the Nebraska Court Rules of Discovery in Civil
Cases are generally and substantially patterned after the cor-
responding discovery rules in the Federal Rules of Civil
Procedure, Nebraska courts will look to federal decisions
interpreting corresponding federal rules for guidance in con-
struing similar Nebraska rules. Eddy v. Builders Supply Co.,
304 Neb. 804, 937 N.W.2d 198 (2020). The federal rule pro-
vides the same limited circumstances in which a deponent
may be instructed not to answer a question. In cases applying
the federal rule 30(c)(2), it has been stated, “Unless one of
the exceptions enumerated in [r]ule 30(c)(2) is applicable,
an attorney typically should lodge a succinct objection to
preserve the issue, allow the deponent to answer the ques-
tion, and then, if necessary, raise the issue with the court in a
pretrial or trial motion.” Mitnor Corp. v. Club Condominiums,
339 F.R.D. 312, 320 (N.D. Fla. 2021). We agree with this gen-
eral statement and find it applicable in this case.
Contrary to the foregoing statement, Asensio asserts that it
was proper for his counsel to instruct him not to answer the
questions because it was necessary to preserve a privilege.
Asensio makes no claim that either of the other exceptions
under Rule 6-330(c)(2) was applicable. Asensio asserts that
§ 27-706(1) created a privilege for him to refuse to provide
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by other medical care providers. Section 27-706(1) generally
provides that a judge may appoint expert witnesses on the
judge’s own motion or on the motion of a party and that such
expert witnesses may be agreed upon by the parties or of the
judge’s own selection. The statute further provides, “An expert
witness shall not be appointed by the judge unless he con-
sents to act.” § 27-706(1). Asensio relies on the requirement
of consent in § 27-706(1) to contend that the statute creates a
privilege for an expert witness to refuse to testify.
Initially, we observe that it is not clear to us that by asking
the questions at issue, Konsul was, as Asensio claims, attempt-
ing to have Asensio provide expert testimony for Konsul.
Many of the questions appear aimed at discovering whether
Asensio would offer trial testimony that suggested that other
medical personnel were responsible for any adverse issues
Konsul had experienced related to the placement of the filter.
We know of no reason why Konsul would be precluded from
probing the possible testimony Asensio might offer at trial,
including any testimony that would blame others for possible
adverse outcomes. But even assuming Konsul was attempting
to have Asensio provide expert testimony, we determine that
§ 27-706 and the consent requirement therein do not apply
to the circumstances in this case. Section 27-706 involves
court appointment of an expert witness, and it does not apply
when a party is taking the deposition of another witness. In
Kaufman v. Edelstein, 539 F.2d 811, 818 (2d Cir. 1976), the
U.S. Court of Appeals for the Second Circuit distinguished
between court-appointed experts covered by the federal equiv-
alent of § 27-706 and other witnesses asked to provide an
expert opinion, stating:
The situation of the court appointed expert who is
expected to delve deeply into the problem and arrive at
an informed and unbiased opinion differs utterly from
that of an expert called by a party to state what facts he
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being asked to make any further investigation.
The Second Circuit further stated that “quite apart from the
inference to be drawn from the provision with respect to
court-appointed experts,” id. at 819, common law principles
“do not recognize any general privilege for experts,” id. at
820. The Second Circuit stated that under federal law “there
is no constitutional or statutory privilege against the com-
pulsion of expert testimony, and we perceive no sufficient
basis in principle or precedent for holding that the common
law recognizes any general privilege to withhold . . . expert
knowledge.” Id. By reference to Nebraska jurisprudence,
we agree.
We recognize that some other states have held that stat-
utes that are similar to § 27-706 create or imply a privilege
for a witness to refuse to give expert testimony, even when
the witness was not appointed by the court. In Borngne v.
Chattanooga-Hamilton Hosp., 671 S.W.3d 476, 486 (Tenn.
2023), the Supreme Court of Tennessee held that “a defendant
healthcare provider cannot be compelled to provide expert
opinion testimony about another defendant provider’s stan-
dard of care or deviation from that standard.” The Tennessee
court determined that Tenn. R. Evid. 706, which is similar to
§ 27-706, “contains a blanket consent requirement for court-
appointed experts, and . . . if a court must obtain consent
from an expert witness, then so must a litigant.” Borngne v.
Chattanooga-Hamilton Hosp., 671 S.W.3d at 486. In determin-
ing that “recognizing such a privilege is good public policy,”
id. at 485, the Tennessee court relied, in part, on decisions
of the Supreme Court of Wisconsin that found a privilege
under a Wisconsin statute similar to Tennessee’s rule 706. In
Carney-Hayes v. Northwest Wis. Home Care, 284 Wis. 2d 56,
91, 699 N.W.2d 524, 541 (2005), the Wisconsin court held that
“a medical witness who is unwilling to testify as an expert
cannot be forced to give her opinion of the standard of care
applicable to another person or her opinion of the treatment
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Cite as 316 Neb. 874provided by another person.” The Wisconsin court relied on
its previous holding in In re Imposition of Sanctions Alt v.
Cline, 224 Wis. 2d 72, 86, 589 N.W.2d 21, 26 (1999) that “a
witness’s privilege to refuse to provide expert testimony is
inherent in Wis. Stat. § 907.06,” which required consent of a
court-appointed expert witness. The Wisconsin court in In re
Imposition of Sanctions Alt v. Cline reasoned that the “express
grant [in Wis. Stat. § 907.06] implies a privilege to refuse to
testify if the expert is called by a litigant.” 224 Wis. 2d at 86,
589 N.W.2d at 26.
We decline to find such a privilege to be “implied” by or
“inherent” in § 27-706 or to read such a privilege into the
Nebraska statute. See Saint James Apt. Partners v. Universal
Surety Co., ante p. 419, 5 N.W.3d 179 (2024) (stating it is not
within province of courts to read meaning into statute that is
not there). Moreover, § 27-501 provides:
Except as otherwise required by the Constitution of the
United States or the State of Nebraska or provided by Act
of Congress, or the Legislature of the State of Nebraska,
by these rules or by other rules adopted by the Supreme
Court of Nebraska which are not in conflict with laws
governing such matters, no person has the privilege to,
inter alia, “[r]efuse to be a witness” or “[r]efuse to disclose
any matter.” We read § 27-501 to limit the sources of privi-
leges to those specified, and we decline to read new privileges
into statutes that do not explicitly create privileges. Section
27-706, in addition to not being applicable to the facts of
this case, also does not specifically provide that it is creating
a privilege.
We determine that the district court erred when it held that
§ 27-706 creates a privilege. Therefore, Asensio’s counsel’s
objection to the questions in the deposition could not be
characterized as asserting a privilege, and counsel could not
properly advise Asensio not to answer the questions on that
basis of privilege under Rule 6-330. The district court erred
when it declared the existence of a privilege and approved of
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Cite as 316 Neb. 874Asensio’s refusal to answer questions regarding the other med-
ical care providers’ standard of care. However, as explained
below, these rulings proved to be harmless.
Dreyfuss as Expert Witness
and Locality Rule.
Konsul claims that the district court erred when it sustained
Asensio’s foundation objection and ruled that, based on the
locality rule as set forth in Carson v. Steinke, 314 Neb. 140,
989 N.W.2d 401 (2023), Dreyfuss could not testify regarding
the applicable standard of care in Omaha. We find no error in
the district court’s ruling.
[8,9] We have stated that it is the burden of the proponent
of expert testimony to establish the necessary foundation for
its admission. Id. Expert testimony offered to establish the
standard of care in a medical malpractice case is admissible
only if its proponent can demonstrate the expert’s familiarity
with the relevant standard of care in the defendant’s com-
munity or a similar community. Id. Neb. Rev. Stat. § 44-2810(Reissue 2021) defines the general standard of care in medical
malpractice cases as “the ordinary and reasonable care, skill,
and knowledge ordinarily possessed and used under like cir-
cumstances by members of his profession engaged in a similar
practice in his or in similar localities” and provides that to
determine what constitutes such ordinary and reasonable care,
skill, and diligence in a particular case, the test is “that which
health care providers, in the same community or in similar
communities and engaged in the same or similar lines of work,
would ordinarily exercise and devote to the benefit of their
patients under like circumstances.”
[10,11] Expert testimony concerning the standard of care in
a medical malpractice case 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 dis-
tinguished from a mere guess or conjecture. Carson v. Steinke,
supra. Where an expert’s opinion is mere speculation or con-
jecture, it is irrelevant and cannot assist the trier of fact. Id.- 892 -
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Cite as 316 Neb. 874Evidence of an expert’s experience and education without
any evidence of familiarity with the relevant or similar local-
ity is insufficient to affirmatively demonstrate that the expert
is competent to testify as to the standard of care. Id. Evidence
that an expert had never practiced in a defendant’s locality
goes to the weight of the evidence but does not keep the expert
from testifying to the standard of care in the relevant locality if
the expert testifies that he or she is nevertheless familiar with
the standard of care in the same or similar locality. Id.Section 44-2810 does not define “similar community,” but
we interpret this term in light of the general purpose of
§ 44-2810 to define the standard of care to which a defendant
is to be held in medical malpractice cases. Carson v. Steinke,
supra. This purpose would not be served if the similarity of
two communities could be determined by considering char-
acteristics that are irrelevant to the level of medical care that
is to be expected. Instead, we agree with those jurisdictions
that consider medically relevant factors, including available
facilities, personnel, equipment, and practices, to determine
whether two communities are similar under their medical mal-
practice statutes. Id.[12] In Carson v. Steinke, 314 Neb. 140, 989 N.W.2d
401 (2023), we held that the burden is on the proponent of
standard-of-care testimony to demonstrate that the expert is
familiar with the customary practice among physicians in
the defendant’s community or a community that is similar in
terms of available resources, facilities, personnel, practices,
and other medically relevant factors. If a party cannot dem-
onstrate his or her expert’s familiarity with such standard of
care, then the expert’s testimony is properly excluded. Id.In Carson v. Steinke, we declined an invitation to interpret
§ 44-2810 to allow an expert unfamiliar with the defendant’s
community or a similar community to testify to a national
standard of care. We recognized that medical standards of
care and skill are becoming national rather than local or
regional, but we concluded that we could not eliminate the
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standard of care and set forth public policy as declared by the
Legislature.
We further stated in Carson v. Steinke that expert testimony
establishing a national standard of care is admissible if the
expert can establish that the national standard of care does
not differ in the defendant’s community or a similar commu-
nity. We stated that testimony regarding a national standard of
care must be coupled with the expert’s explanation of why the
national standard applies under the circumstances.
Applying the principles set forth in Carson v. Steinke, the
district court did not abuse its discretion when it concluded
that Konsul failed to establish Dreyfuss’ familiarity with the
standard of care in Omaha or that Omaha was similar to other
communities with which Dreyfuss was familiar in terms of
available medical facilities, personnel, services, or practices.
Dreyfuss initially testified regarding his training and expe-
rience in locations including Vermont, New Jersey, and New
York. He testified that he prepared for the present case by
reviewing case materials, including depositions of Asensio and
Konsul and medical records from Konsul’s hospitalization.
After this testimony, Dreyfuss testified that he was prepared
to opine on the standard of care in Nebraska. At that point,
Asensio requested a foundational voir dire before Dreyfuss
gave his opinion, and in response to Asensio’s questioning,
Dreyfuss testified that he was not licensed to practice medi-
cine in Nebraska, had not practiced in Nebraska, and had
never been in Omaha before the day of the trial. Dreyfuss
also testified that he was familiar with the existence of Omaha
and Creighton but did not know “anything substantive about
them.” He conceded that in preparing to testify in this case,
he had not come to Omaha or done any investigation into the
facilities, personnel, and practices in Omaha.
After Asensio moved to strike Dreyfuss’ testimony regard-
ing the standard of care in Omaha, the court allowed Konsul
to question Dreyfuss to provide further foundation. At that
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Cite as 316 Neb. 874point, Dreyfuss generally testified that there was a national
standard of care that applied in Omaha, as well as in the loca-
tions in which he had trained and practiced. Dreyfuss also
testified that he had given testimony in communities he con-
sidered to be similar to Omaha. Dreyfuss testified that he was
familiar with the resources, facilities, personnel, and practices
in communities he considered to be similar to Omaha.
We agree with the district court’s determination that this
foundation was not sufficient under our decision in Carson
v. Steinke, 314 Neb. 140, 989 N.W.2d 401 (2023). Although
Dreyfuss testified that the other communities were similar
to Omaha, he did not specifically testify that the communi-
ties were similar to Omaha in terms of available resources,
facilities, personnel, practices, and other medically relevant
factors. Nor did Dreyfuss testify that he was familiar with
Omaha in terms of these medically relevant factors; instead,
it appeared that his knowledge of Omaha was essentially
limited to what occurred in the present case. Dreyfuss also
testified that a national standard of care applied in Omaha and
in the other communities. However, Dreyfuss did not demon-
strate sufficient familiarity with the medically relevant factors
in Omaha to establish that the national standard of care did
not differ from the standard of care in Omaha or to explain
why the national standard applied under the circumstances of
this case.
We conclude that the district court properly determined that
there was not sufficient foundation under the locality rule for
Dreyfuss to opine on the standard of care in this case. The
district court did not err when it struck Dreyfuss’ testimony
regarding the standard of care.
Deposition Issues, Directed Verdict,
and Dismissal of Case.
Without Dreyfuss’ testimony, Konsul provided no evidence
of the standard of care, and the district court dismissed
Konsul’s case. Having determined that the district court did
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Cite as 316 Neb. 874not err in excluding the testimony of Dreyfuss, we deter-
mine that the district court did not err when it granted
Asensio’s motion for directed verdict and dismissed the case
with prejudice.
A directed verdict is proper at the close of all the evidence
only when reasonable minds cannot differ and can draw but
one conclusion from the evidence, that is, when an issue
should be decided as a matter of law. Carson v. Steinke, supra.In reviewing a trial court’s ruling on a motion for directed
verdict, an appellate court must treat the motion as an admis-
sion of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reason-
ably be deduced from the evidence. Id.[13] To make a prima facie case for medical malpractice,
a plaintiff must show (1) the applicable standard of care, (2)
that the defendant(s) deviated from that standard of care, and
(3) that this deviation was the proximate cause of the plain-
tiff’s harm. Id. Generally, expert testimony is required on
each element. Id. Because Dreyfuss’ testimony was properly
excluded, Konsul presented no expert testimony on any of the
three elements to make a prima facie case against Asensio.
Accordingly, the district court correctly directed a verdict in
favor of Asensio.
As we foreshadowed above, we further determine that the
district court’s error regarding the deposition issues was harm-
less considering the proper dismissal of the action based
on Konsul’s failure to present evidence regarding the stan-
dard of care. Nevertheless, Konsul argues that if Asensio had
been required to answer all the questions at the deposition,
Asensio’s answers to the questions could have provided evi-
dence regarding the standard of care. We reject these asser-
tions. The questions Asensio refused to answer were directed
at the standard of care for the other medical care providers
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Cite as 316 Neb. 874and not the standard of care for Asensio, who was the only
defendant still in the case at the time of the trial. Asensio had
already testified in the deposition that his conduct relevant
to the facts of this case that challenged his actions met the
standard of care, and his answers to the questions posed by
Konsul regarding the other medical care providers would not
have provided further evidence regarding the standard of care
applicable to Asensio’s work.
Konsul also argues that Asensio’s answers to the questions
regarding the other medical care providers could have been
reviewed by Dreyfuss and would have qualified Dreyfuss
to testify regarding the standard of care in Omaha. Again,
we note that Asensio testified regarding the standard of care
applicable to his work, and his answers to the questions would
not have provided further evidence regarding the standard of
care applicable to him and his role in the underlying events.
Furthermore, the answers would not have provided the sort of
information regarding medically relevant factors that would
have qualified Dreyfuss to testify regarding the standard of
care in Omaha relevant to the present action against Asensio.
We therefore determine that the district court’s error regarding
the deposition issues was harmless considering the proper dis-
missal of the action based on Konsul’s failure to provide evi-
dence of the standard of care applicable to Asensio. Answers
to questions regarding the other medical care providers who
performed different tasks would not have informed an assess-
ment that was relevant to Asensio’s actions, which formed the
basis of the case.
CONCLUSION
We determine that the district court did not err when it
struck Dreyfuss as an expert witness and when it thereafter
granted Asensio’s motion for a directed verdict and dismissed
Konsul’s case for failure to provide evidence of the standard
of care applicable to Asensio. Although we determine that the
district court erred as a matter of law when it reasoned that
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Cite as 316 Neb. 874§ 27-706 sets forth a privilege that allowed Asensio’s counsel
to instruct Asensio not to answer Konsul’s questions during
the deposition, we determine that any error in this respect
was harmless because the questions were not directed at, and
would not have provided evidence of, the standard of care
applicable to Asensio and therefore would not have helped
Konsul to provide the standard of care evidence that was
required to survive the directed verdict. We therefore affirm
the order of the district court that dismissed Konsul’s case
with prejudice.
Affirmed.
Cassel, J., dissenting in part.
Upon further reflection, I conclude that one principle artic-
ulated in Carson v. Steinke 1 is inconsistent with and contrary
to the locality rule mandated by Neb. Rev. Stat. § 44-2810(Reissue 2021). I would disapprove the proposition that
“[e]xpert testimony establishing a national standard of care
is admissible if the expert can establish that the national stan-
dard of care does not differ in the defendant’s community or a
similar community.” 2
A national standard of care is simply contrary to the local-
ity rule. If a standard of care does not apply to a particular
locality, then, by definition, it cannot be a “national” standard
of care. By prescribing a locality rule, our Legislature has
rejected the concept of a national standard of care.
The instant case illustrates the confusion that will ensue
from attempts to inject a “national” standard of care into a
Nebraska medical malpractice action. If unaccompanied by
locality testimony, national standard testimony is insufficient.
Where both are presented, national standard testimony serves
only to cloud the issue.
1
Carson v. Steinke, 314 Neb. 140, 989 N.W.2d 401 (2023).
2
Id. at 157, 989 N.W.2d at 415.
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Cite as 316 Neb. 874I express no opinion regarding the wisdom of the
Legislature’s choice or any alternative available to it. That
is not my role. But unless and until the Legislature amends
§ 44-2810, courts should reject attempts to assert the existence
of a “national” standard of care.
To the extent that the majority opinion here adheres to the
quoted articulation, I respectfully dissent. In all other respects,
I agree with the majority opinion.