Lombardo v. Sedlacek ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/18/2018 01:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
LOMBARDO v. SEDLACEK
Cite as 299 Neb. 400
M arc A. Lombardo, appellant and cross-appellee,
v. M ichael J. Sedlacek, M.D., appellee
and cross-appellant.
___ N.W.2d ___
Filed March 23, 2018. No. S-17-146.
1. 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.
2. Appeal and Error. Appellate review of a district court’s use of inherent
power is for an abuse of discretion.
3. 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.
4. Judgments: Motions for Continuance: Appeal and Error. A court’s
grant or denial of a continuance and other judicial action authorized by
Neb. Rev. Stat. § 25-1335 (Reissue 2016) are within the discretion of the
trial court, whose ruling will not be disturbed on appeal in the absence
of an abuse of discretion.
5. Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in a light most favor-
able to the party against whom the judgment is granted and gives
such party the benefit of all reasonable inferences deducible from
the evidence.
6. Judgments: Pleadings: Appeal and Error. A motion to alter or amend
a judgment is addressed to the discretion of the trial court, whose deci-
sion will be upheld in the absence of an abuse of that discretion.
7. Statutes: Jurisdiction. Jurisdictional statutes must be strictly construed.
8. Statutes: Jurisdiction: Legislature: Courts: Appeal and Error. To
say that jurisdiction may be lodged in the Nebraska Supreme Court in
any other manner than that provided by the plain words of the statute
amounts to judicial legislation.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
LOMBARDO v. SEDLACEK
Cite as 299 Neb. 400
9. Legislature: Intent. The intent of the Legislature is generally expressed
by omission as well as by inclusion.
10. Statutes: Appeal and Error. An appellate court is not at liberty to add
language to the plain terms of a statute to restrict its meaning.
11. Pleadings: Notice. The statutory description of the motion to alter or
amend does not include any requirement that the motion be accompa-
nied simultaneously by a notice of hearing before the district court.
12. Summary Judgment: Motions for Continuance: Affidavits. The pur-
pose of Neb. Rev. Stat. § 25-1335 (Reissue 2016) is to provide a safe-
guard against an improvident or premature grant of summary judgment.
13. ____: ____: ____. The affidavit in support of relief under Neb. Rev.
Stat. § 25-1335 (Reissue 2016) need not contain evidence going to
the merits of the case, but it must contain a reasonable excuse or good
cause, explaining why a party is presently unable to offer evidence
essential to justify opposition to the motion for summary judgment.
14. 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.
15. Malpractice: Physicians and Surgeons: Expert Witnesses:
Presumptions. There are only very limited exceptions to the require-
ment of expert testimony to rebut a prima facie case by a physician stat-
ing that he or she met the standard of care, where the alleged negligence
and the causal link to the plaintiff’s injuries are presumed to be within
the comprehension of laymen.
16. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
Appeal from the District Court for Douglas County: Horacio
J. Wheelock, Judge. Affirmed.
Christian T. Williams, of Domina Law Group, P.C., L.L.O.,
for appellant.
Marc A. Lombardo, pro se.
Mary M. Schott and Thomas J. Shomaker, of Sodoro, Daly,
Shomaker & Selde, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and
Funke, JJ.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
LOMBARDO v. SEDLACEK
Cite as 299 Neb. 400
Heavican, C.J.
I. NATURE OF CASE
A former patient sued a psychiatrist for medical malprac-
tice. The psychiatrist moved for summary judgment. The psy-
chiatrist averred that he had met the applicable standard of
care and that he had given to the patient all materials in his
possession pertaining to the patient’s care. The court granted
the patient a 90-day continuance of the summary judgment
hearing, in order to find an expert witness. The court stayed
all discovery and pending motions until the summary judg-
ment hearing or an expert witness indicated the need for more
discovery. The patient failed to designate an expert within 90
days, and the court granted summary judgment in favor of the
psychiatrist. The patient appeals, arguing that the court abused
its discretion in staying discovery contingent upon his desig-
nation of an expert witness, in refusing to admit into evidence
at the summary judgment hearing his first set of requests for
admission and the psychiatrist’s responses, and in erroneously
relying on the psychiatrist’s affidavit that allegedly was not
in evidence.
II. BACKGROUND
1. Complaint
Marc A. Lombardo, pro se, sued his former psychiatrist,
Michael J. Sedlacek, for medical malpractice. Lombardo
alleged that Sedlacek was negligent in failing to properly
diagnose and treat Lombardo and that as a proximate result,
Lombardo suffered permanent personal injuries and dam-
ages, including but not limited to, loss of income, medical
expenses, impairment of earning capacity, and mental pain
and suffering. In Sedlacek’s answer to the amended complaint,
he admitted that he provided medical care to Lombardo, but
denied the remaining allegations. Sedlacek moved for sum-
mary judgment.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
LOMBARDO v. SEDLACEK
Cite as 299 Neb. 400
2. Protective Orders
The motion for summary judgment was originally set for
hearing on June 1, 2016. At a hearing held on April 28, the
court heard several motions.
The court overruled Lombardo’s motion to strike Sedlacek’s
answer on the ground that it was too general.
The court also overruled a motion by Lombardo for a tem-
porary protective order from Sedlacek’s discovery requests,
pursuant to the federal Health Insurance Portability and
Accountability Act of 1996 (HIPAA). The motion had requested
“the entry of a Protective Order for the purpose of preventing
the disclosure and use of Confidential Information by any party
or non-party other than as allowed by the order.”
The court granted a motion by Sedlacek for a protective
order requiring Lombardo to communicate with Sedlacek’s
attorney, and not with Sedlacek directly.
The court granted Lombardo a 1-month continuance for
Lombardo to respond to Sedlacek’s discovery requests.
On May 28, 2016, Lombardo sent Sedlacek his first set of
requests for admission.
3. Continuance of Summary Judgment Hearing,
Stay of Motions and Discovery,
and Sedlacek’s A ffidavits
On June 6, 2016, Lombardo filed a motion to compel Sedlacek
to produce certain documents responsive to Lombardo’s first
set of requests for production, which had been served on April
7. In the motion, Lombardo alleged that Sedlacek had not
produced all the documents in his possession and that he had
obscured or cropped portions of the documents provided. On
June 9, Lombardo filed a motion to continue the hearing on
the motion for summary judgment, pursuant to Neb. Rev. Stat.
§ 25-1335 (Reissue 2016).
The court conducted a hearing on June 13, 2016. The court
introduced the hearing as a hearing on summary judgment. At
that point, Lombardo interjected that he had filed a motion to
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299 Nebraska R eports
LOMBARDO v. SEDLACEK
Cite as 299 Neb. 400
continue the summary judgment hearing. Sedlacek responded
that he had objected to the continuance.
Lombardo offered into evidence exhibit 23 in support of his
motion to continue. The court entered exhibit 23 into evidence
without limitation. Exhibit 23 consists of Lombardo’s affidavit
and several attachments.
In his affidavit, Lombardo averred that he did not have all
the medical records that Sedlacek was supposed to produce,
that certain records appeared to contain misrepresentations or
fabrications of facts, and that portions of the records were illeg-
ible. Lombardo further stated in the affidavit that he needed to
depose Sedlacek “in order to understand more about why the
records contain the false information.” Lombardo requested a
continuance of the summary judgment hearing for at least 9
months, after all records were produced, in order for Lombardo
to name an expert.
Also contained within exhibit 23 is an affidavit by Sedlacek,
dated May 2, 2016. In the May 2 affidavit, Sedlacek averred
that he had met or exceeded the applicable standard of care
required of him under the circumstances in his treatment of
Lombardo.
Lombardo’s affidavit, to which Sedlacek’s affidavit was
attached, did not call into question the authenticity of Sedlacek’s
May 2, 2016, affidavit. Instead, Lombardo “responded” to
Sedlacek’s affidavit, stating that he could not opine on the accu-
racy of Sedlacek’s averments and that he disagreed Sedlacek
had met the applicable standard of care.
In response to Lombardo’s affidavit claiming he had not
received all his medical records, Sedlacek entered into evi-
dence exhibit 22. Exhibit 22 is Sedlacek’s affidavit, dated
June 9, 2016, averring that he had provided all “materials
pertaining to . . . Lombardo that I believe are my [sic] pos-
session or the possession of my office staff to my attorneys”
and that “[i]t is my understanding that all of the records that
I provided to my attorneys were produced to . . . Lombardo
in response to his Requests for Production of Documents.”
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
LOMBARDO v. SEDLACEK
Cite as 299 Neb. 400
Lombardo confirmed at the hearing that on May 11, he
had received 484 pages of documents from the offices of
Sedlacek’s attorneys.
Given the fairly recent receipt of his medical records, the
court ultimately granted Lombardo a 90-day continuance of
the summary judgment hearing, in order to find an expert. The
court told Lombardo that he would not be allowed to designate
an expert after September 13, 2016. The summary judgment
hearing was continued to September 15.
The court did not rule upon Lombardo’s motion to compel,
but instead continued the hearing on any pending motions
until September 15, 2016. The court specifically stated that
Lombardo was not allowed to depose Sedlacek “until and after
such time [Lombardo] has identified his expert or experts, and
said expert or experts’ opinions.” The court explained that
Lombardo needed to designate an expert “before we do any-
thing else.”
4. Denial of Motion to A lter
or A mend and Stay of
Motions and Discovery
The orders from the April 28 and June 13, 2016, hear-
ings were file stamped on June 13, 2016. And, on June 23,
Lombardo filed a “Motion to Alter or Amend” the June 13
order relating to the continuance of pending motions and the
requirement that Lombardo designate an expert witness.
Despite the court’s order staying discovery, Lombardo sent
Sedlacek a second set of requests for admission on July 14,
2016. In response, on July 19, Sedlacek also moved for a stay
of all discovery until September 15, unless Lombardo could
show that the discovery was requested by a potential expert.
Sedlacek also moved for a stay of all hearings on all motions
filed by Lombardo that did not relate to his ability or duty to
designate an expert until September 15.
At a hearing on July 25, 2016, Lombardo again argued
that Sedlacek had not provided all records in his possession.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
LOMBARDO v. SEDLACEK
Cite as 299 Neb. 400
Lombardo claimed he had proof in the form of a letter he
received from Sedlacek, a copy of which was not in the records
disclosed. Counsel for Sedlacek responded that they had
scanned approximately 500 pages of records and had sent them
to Lombardo and that those were all the pertinent records in
Sedlacek’s possession.
The court made a specific finding that all discovery had
been complied with up to the date of the hearing.
The court again stayed all discovery until Lombardo desig-
nated an expert. The court stated that if Lombardo timely found
an expert, and such expert indicated more discovery was nec-
essary, the court would reopen discovery. The court explained
that Sedlacek’s averment that he had met the standard of care
created a prima facie case for summary judgment and that the
burden had shifted to Lombardo to present expert testimony
showing a material issue of fact.
The court denied Lombardo’s motion to alter or amend. The
court’s order was file stamped on July 26, 2016.
5. Lombardo’s Objection and
Interlocutory A ppeal
On August 5, 2016, Lombardo served upon Sedlacek a third
set of requests for admission. And on August 8, Lombardo filed
an “Objection and Motion.” Lombardo stated in the August 8
motion that he objected to the court’s order of July 26, because
he had not received timely notice of Sedlacek’s July 19 motion
for a stay of discovery. Lombardo stated, further, that Sedlacek
had omitted 38 of 52 requests for admission, which were served
on Sedlacek on May 28, 2016, before any stay of discovery.
Lombardo asked the court to set aside its order on Sedlacek’s
July 19 motion or to amend the order so as to remove the stay
on discovery.
On August 11, 2016, Lombardo filed a notice of appeal
from the court’s orders of June 13 and July 26. In an order
on August 22, the district court stated that it was retaining
jurisdiction while the appeal was pending, on the ground that
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
LOMBARDO v. SEDLACEK
Cite as 299 Neb. 400
Lombardo had appealed from nonfinal orders. On September
19, 2016, in case No. A-16-776, the August 11 appeal was
summarily dismissed for lack of jurisdiction by the Nebraska
Court of Appeals.
6. Hearing and Order R egarding
Summary Judgment
On September 12, 2016, Lombardo filed a motion to stay the
summary judgment hearing, as well as a jury demand. In the
motion to stay, Lombardo asserted that his August 11 notice of
appeal deprived the court of jurisdiction.
At a hearing on September 15, 2016, the court denied the
motion to stay and proceeded with the motion for summary
judgment. Lombardo conceded at the hearing that he had not
designated an expert. Lombardo explained that he had spoken
with a medical doctor, but had not hired the doctor or obtained
an affidavit from the doctor expressing any opinion.
Lombardo entered into evidence exhibit 34, entitled
“Objection.” In the objection, Lombardo asserted, among other
things, that Sedlacek’s May 2, 2016, affidavit was inadmis-
sible, because Sedlacek made statements that were not based
on personal knowledge and because Sedlacek relied on hearsay
statements in the medical records. However, Lombardo did not
object to the use of the May 2 affidavit on the grounds that it
had allegedly been admitted for a limited purpose, that it had
been admitted into evidence at a prior hearing, that Lombardo
lacked notice it would be relied on in determining the motion
for summary judgment, or that the affidavit was submitted by
Lombardo rather than by Sedlacek.
Lombardo also offered into evidence exhibit 35, containing
Lombardo’s first set of requests for admission and Sedlacek’s
responses. In an affidavit within exhibit 35, Lombardo averred
that he mailed a copy of the requests to Sedlacek’s attorney
on May 28, 2016, and mailed a notice of service on June 1.
He further stated that he believed requests Nos. 3, 5 to 11, 13,
14, 16 to 18, 20, 21, 25, 27, and 31 to 52 should be deemed
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
LOMBARDO v. SEDLACEK
Cite as 299 Neb. 400
admitted pursuant to Neb. Ct. R. Disc. § 6-336, because they
were not responded to.
A comparison of the requests and the responses found in
Lombardo’s offer of proof indicates that, with the exception of
request No. 38, the requests specified by Lombardo were not
individually responded to. However, Sedlacek’s response to the
first set of requests for admission stated with regard to these
unanswered requests that they were “vague, unclear as to time
and place, [sought] conclusions of law, [sought] conclusions
as to the impressions of others, [were] unintelligible, and/or
contain[ed] compound questions.”
Sedlacek’s attorney objected to the admission of exhibit 35.
She asserted that a general denial to a number of requests does
not waive or permit those requests to be deemed admitted.
The court sustained counsel’s objection and refused to enter
exhibit 35 into evidence for purposes of the summary judg-
ment hearing.
Lombardo also offered into evidence exhibits 36 and 37,
which consisted of Lombardo’s second and third sets of
requests for admission, along with Lombardo’s affidavits stat-
ing their dates of service and that Sedlacek had not responded
to the requests. The court sustained Sedlacek’s objections to
the exhibits on the ground that they were subject to the court’s
stay of discovery.
On September 20, 2016, the court granted summary judg-
ment to Sedlacek. The court ruled that all other pending
motions were denied as moot and explicitly stated that the
court did not retain any motions for future disposition.
7. Motion to A lter or A mend
On September 26, 2016, Lombardo filed a motion to alter
or amend, asking the court to vacate its order of summary
judgment. The motion was served upon Sedlacek, but did not
contain a notice of hearing at the time of its filing. A notice
of hearing was later filed on December 14, setting the hearing
on the motion to alter or amend for December 30. The hearing
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LOMBARDO v. SEDLACEK
Cite as 299 Neb. 400
was rescheduled for January 13, 2017. Prior to the hearing,
Lombardo filed an “Amended Motion to Alter or Amend
Judgment,” as well as a motion to stay the hearing on his
motion to alter or amend.
At the hearing on January 13, 2017, Sedlacek objected to
Lombardo’s motion to alter or amend on the ground that the
district court lacked “jurisdiction” to hear the motion, because
Lombardo had failed to comply with Rules of Dist. Ct. of
Fourth Jud. Dist. 4-2(B)(1) (rev. 2005). That rule states in rel-
evant part:
Unless otherwise ordered by the court, all pretrial and
posttrial motions or similar filings such as special appear-
ances which require a hearing shall be filed in the case
prior to the scheduled hearing. At the time of making said
filing, the party shall obtain a date for hearing thereon
from the judge in charge of the case or, in the absence of
the judge or at the judge’s direction, from a member of the
judge’s office staff.
(Emphasis supplied.)
Sedlacek acknowledged receipt of notice of the hearing,
but argued that Lombardo should have obtained the notice
of hearing before the motion was filed. The court overruled
Sedlacek’s jurisdictional objection and considered the merits of
Lombardo’s motion to alter or amend.
During the hearing on Lombardo’s motion to alter or amend,
one of the attorneys from the firm representing Sedlacek
stated that as far as she could tell, Sedlacek’s affidavit stating
he met the applicable standard of care had not been offered
into evidence. The court disagreed. The judge stated that he
recalled seeing the affidavit and that it had been “attached to
something that was submitted.”
In an order dated January 17, 2017, the court denied
Lombardo’s motion to stay, his motion to alter or amend, and
his amended motion to alter or amend. The court denied all
other pending motions.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
LOMBARDO v. SEDLACEK
Cite as 299 Neb. 400
On February 6, 2017, Lombardo filed his notice of appeal
and deposited his docket fee in the office of the clerk of the
district court. That is the appeal presently before us.
III. ASSIGNMENTS OF ERROR
Lombardo assigns that the district court erred when it (1)
granted summary judgment without an affidavit in support
of the motion before it, (2) did not hear and did not grant
Lombardo’s motion to compel discovery, (3) did not grant
Lombardo’s motion for additional time in discovery, (4) did not
hear and did not grant Lombardo’s motions for protection from
discovery, (5) determined that Sedlacek had made a prima facie
case on the basis of facts not in evidence, (6) relied on facts
not in evidence, and (7) denied Lombardo’s offer of evidence
in opposition to summary judgment.
On cross-appeal, Sedlacek assigns that the district court
should have sustained his objection to Lombardo’s motion to
alter or amend and “acknowledged the case stood dismissed
when no appeal was taken within 30 days of the Order granting
Summary Judgment.”
IV. STANDARD 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.1
Similarly, appellate review of a district court’s use of inherent
power is for an abuse of discretion.2
[3] An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.3
[4] A court’s grant or denial of a continuance and other judi-
cial action authorized by § 25-1335 are within the discretion
1
Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017).
2
Id.
3
Id.
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Cite as 299 Neb. 400
of the trial court, whose ruling will not be disturbed on appeal
in the absence of an abuse of discretion.4
[5] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party
against whom the judgment is granted and gives such party
the benefit of all reasonable inferences deducible from
the evidence.5
[6] A motion to alter or amend a judgment is addressed to
the discretion of the trial court, whose decision will be upheld
in the absence of an abuse of that discretion.6
V. ANALYSIS
1. Jurisdiction
We first address Sedlacek’s cross-appeal. Sedlacek asserts
that we lack jurisdiction because Lombardo’s motion to alter
or amend was defective and thus failed to toll the 30-day statu-
tory period for perfecting his appeal to this court. Sedlacek
contends that Lombardo’s motion was fatally defective because
Lombardo failed to comply with local district court rule
4-2(B)(1), which requires parties to obtain a date for hearing
simultaneously to the filing of any motion.
[7-10] An appellate court acquires no jurisdiction unless
the appellant has satisfied the requirements for appellate juris-
diction.7 Jurisdictional statutes must be strictly construed.8 To
say that jurisdiction may be lodged in our appellate court in
any other manner than that provided by the plain words of
the statute amounts to judicial legislation.9 The intent of the
4
See, Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014); Wachtel v.
Beer, 229 Neb. 392, 427 N.W.2d 56 (1988).
5
Yoder v. Cotton, 276 Neb. 954, 758 N.W.2d 630 (2008).
6
Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014).
7
Goodman v. City of Omaha, 274 Neb. 539, 742 N.W.2d 26 (2007).
8
State v. Parmar, 255 Neb. 356, 586 N.W.2d 279 (1998).
9
See id.
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LOMBARDO v. SEDLACEK
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Legislature is generally expressed by omission as well as by
inclusion.10 We are not at liberty to add language to the plain
terms of a statute to restrict its meaning.11
Neb. Rev. Stat. § 25-1912(1) (Reissue 2016) provides that
an appeal is perfected and the appellate court has jurisdiction
when a notice of appeal is properly filed within 30 days of the
entry of the judgment, decree, or final order. Subsection (4) of
§ 25-1912 states:
Except as otherwise provided in subsection (3) of this
section . . . an appeal shall be deemed perfected and the
appellate court shall have jurisdiction of the cause when
such notice of appeal has been filed and such docket fee
deposited in the office of the clerk of the district court,
and after being perfected no appeal shall be dismissed
without notice, and no step other than the filing of such
notice of appeal and the depositing of such docket fee
shall be deemed jurisdictional.
(Emphasis supplied.)
Section 25-1912(3) provides for termination of the 30-day
period through a timely motion to alter or amend. It states in
this regard:
The running of the time for filing a notice of appeal shall
be terminated as to all parties . . . (b) by a timely motion
to alter or amend a judgment under section 25-1329, . . .
and the full time for appeal fixed in subsection (1) of this
section commences to run from the entry of the order rul-
ing upon the motion filed pursuant to subdivision (a), (b),
or (c) of this subsection.
(Emphasis supplied.) Thus, under § 25-1912(3), the time to
appeal to this court begins anew after the motion to alter or
amend is disposed of.12
10
State v. Frederick, 291 Neb. 243, 864 N.W.2d 681 (2015).
11
Id.
12
See, Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284
(2017); Gebhardt v. Gebhardt, 16 Neb. Ct. App. 565, 746 N.W.2d 707 (2008).
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LOMBARDO v. SEDLACEK
Cite as 299 Neb. 400
The only express limitation to this exception within our
statutes governing appellate jurisdiction is that the motion to
alter or amend be as described by Neb. Rev. Stat. § 25-1329
(Reissue 2016). Section 25-1329 states in full:
A motion to alter or amend a judgment shall be filed
no later than ten days after the entry of the judgment.
A motion to alter or amend a judgment filed after the
announcement of a verdict or decision but before the
entry of judgment shall be treated as filed after the entry
of judgment and on the day thereof.
[11] This statutory description of the motion to alter or
amend does not include any requirement that the motion be
accompanied simultaneously by a notice of hearing before
the district court. Under the plain language of our jurisdic-
tional statutes, to terminate the 30-day period for filing a
notice of appeal, the motion to alter or amend needs to be filed
within 10 days after the entry of the judgment. In this case,
it was.
And the district court accepted Lombardo’s motion to alter
or amend as filed—despite Lombardo’s failure to timely set a
hearing date under local district court rule 4-2(B)(1). The court
specifically rejected Sedlacek’s contention that the motion
was fatally defective and should not be recognized as filed,
for the reason that Lombardo had not simultaneously obtained
a date for its hearing.
We find no error in the court’s ruling. Indeed, local district
court rule 4-2(B)(1) does not by its plain language purport to
set forth the requirements of a motion itself. Rather, the rule
requires that the party filing a motion obtain a date for hearing
on the motion when the motion is filed. It states in relevant
part that “[a]t the time of making said filing, the party shall
obtain a date for hearing thereon . . . .”
Sedlacek points to no rule stating the consequences of fail-
ing to abide by local district court rule 4-2(B)(1). Moreover,
district courts have discretion to excuse procedural court
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rules.13 An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.14 We find no reason to conclude that the district
court abused its discretion in accepting Lombardo’s motion to
alter or amend as properly filed and under the court’s consid-
eration until its ruling on January 17, 2017.
Sedlacek’s reliance on Neb. Rev. Stat. § 25-910 (Reissue
2016) does not alter our analysis. Section 25-910 merely
outlines the required written content of a notice of a motion
“[w]here notice of a motion is required . . . .” It does not state
that the motion must be filed simultaneously with a notice of
hearing. Moreover, § 25-910 is not cross-referenced by our
statutes governing appellate jurisdiction.
The 30-day period for filing a notice of appeal was termi-
nated until Lombardo’s motion to alter or amend (filed with
the district court within 10 days of the judgment as required
by § 25-1329) was disposed of. Then, a new 30-day period
began. Lombardo filed his notice of appeal within 30 days
of the January 17, 2017, order denying his motion to alter or
amend. Therefore, the current appeal is timely and we have
jurisdiction to consider the merits of Lombardo’s assignments
of error.
2. Summary Judgment
While Lombardo’s pro se brief touches upon many top-
ics, we consider only arguments that were both specifically
assigned and specifically argued in the appellate brief.15
Broadly, Lombardo presents three assertions of error that
were both assigned and argued. First, he asserts that the dis-
trict court erroneously relied on an affidavit not in evidence
in its various rulings, including granting summary judgment
13
See Houser v. American Paving Asphalt, ante p. 1, 907 N.W.2d 16 (2018).
14
Putnam v. Scherbring, supra note 1.
15
See Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007).
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in Sedlacek’s favor. Second, Lombardo argues that he was
unfairly hampered in the amount of discovery permitted before
the court ruled on the summary judgment motion, by limit-
ing its continuance to finding an expert and refusing to grant
Lombardo’s motion to compel discovery. Third, Lombardo
asserts that he was prejudiced at the summary judgment hear-
ing by the district court’s allegedly erroneous ruling on his
offer of exhibit 35, and its failure to grant his motion for a
protective order under HIPAA.
(a) Affidavit “Not in Evidence”
We find no merit to Lombardo’s contention that Sedlacek’s
affidavit, stating he met the applicable standard of care, was
not in evidence. It is true, as Lombardo points out, that unless
the affidavit is marked, offered, and accepted, it does not
become part of the record and cannot be considered by the trial
court as evidence.16 But, fortunately for Sedlacek, the May 2,
2016, affidavit, in which Sedlacek averred he met the appli-
cable standard of care, was offered into evidence by Lombardo
as part of exhibit 23. Lombardo’s affidavit did not purport
to attach Sedlacek’s affidavit for a limited purpose. And the
district court admitted exhibit 23 into evidence without any
restriction on its use. Lombardo’s “Objection,” at exhibit 34,
to the affidavit, on the ground that it was vague and relied on
hearsay, was untimely.
Accordingly, Sedlacek’s May 2, 2016, affidavit was part of
the record and was properly considered by the district court
as evidence. Most importantly, the court properly relied upon
Sedlacek’s affidavit, which was submitted during the June 13
summary judgment hearing, in granting summary judgment in
favor of Sedlacek.
(b) Limited Continuance
We equally find no merit to Lombardo’s claim that the court
erred in deciding Sedlacek’s motion for summary judgment
16
Altaffer v. Majestic Roofing, 263 Neb. 518, 641 N.W.2d 34 (2002).
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without allowing Lombardo adequate time for discovery to
rebut Sedlacek’s prima facie case.
[12] Lombardo asserts that pursuant to § 25-1335, the
court should have refused Sedlacek’s motion for summary
judgment or granted Lombardo a continuance on the hearing
of the motion, in order to permit affidavits to be obtained,
depositions to be taken, or discovery to be had. The purpose
of § 25-1335 is to provide a safeguard against an improvident
or premature grant of summary judgment.17 Section 25-1335
provides:
Should it appear from the affidavits of a party oppos-
ing the motion that he cannot for reasons stated present
by affidavit facts essential to justify his opposition, the
court may refuse the application for judgment or may
order a continuance to permit affidavits to be obtained
or depositions to be taken or discovery to be had or may
make such other order as is just.
[13] We have said that the affidavit in support of relief
under § 25-1335 need not contain evidence going to the
merits of the case,18 but it must contain a reasonable excuse
or good cause, explaining why a party is presently unable to
offer evidence essential to justify opposition to the motion
for summary judgment.19 We have cited with approval case
law holding that the affidavit must show how additional time
will enable the party to rebut a summary judgment movant’s
allegation that no genuine issue of material fact exists for
disposition by trial.20 The affidavit should specifically identify
the relevant information that will be obtained with additional
17
Gaytan v. Wal-Mart, supra note 4; Wachtel v. Beer, supra note 4.
18
See, Gaytan v. Wal-Mart, supra note 4; Dresser v. Union Pacific RR. Co.,
282 Neb. 537, 809 N.W.2d 713 (2011); Wachtel v. Beer, supra note 4.
19
Id.
20
See Wachtel v. Beer, supra note 4, citing Patty Precision v. Brown &
Sharpe Mfg. Co., 742 F.2d 1260 (10th Cir. 1984).
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time and indicate some basis for the conclusion that the sought
information actually exists.21
Generally, the control of discovery is a matter for judicial
discretion.22 A court’s grant or denial of a continuance and
other judicial action authorized by § 25-1335 is likewise within
the discretion of the trial court, whose ruling will not be dis-
turbed on appeal in the absence of an abuse of discretion.23
We first note that the court did, in fact, grant Lombardo
relief under § 25-1335 in the form of a 90-day continu-
ance for Lombardo to find an expert witness. Nevertheless,
Lombardo argues that the court abused its discretion in so
limiting the relief and in not allowing Lombardo more time for
discovery without a designated expert. In particular, Lombardo
argues he should have been allowed more time in order to
depose Sedlacek.
In his affidavit in support of relief under § 25-1335,
Lombardo claimed he did not have all the medical records,
certain records appeared to contain misrepresentations or fab-
rications of facts, and portions of the records were illegible.
He averred that he needed to depose Sedlacek “in order to
understand more about why the records contain the false
information.”
But none of the allegations in Lombardo’s affidavit pre-
sented a likelihood that additional time for discovery, with-
out designating an expert, would allow Lombardo to rebut
Sedlacek’s prima facie case for summary judgment. As the
district court repeatedly explained, Lombardo needed an expert
witness in order to do that.
[14] At the summary judgment stage, it is well settled
that a physician’s self-supporting affidavit suffices to make
21
See id., citing VISA Intern. Service v. Bankcard Holders, 784 F.2d 1472
(9th Cir. 1986).
22
See, Putnam v. Scherbring, supra note 1; Gallner v. Hoffman, 264 Neb.
995, 653 N.W.2d 838 (2002).
23
See, Gaytan v. Wal-Mart, supra note 4; Wachtel v. Beer, supra note 4.
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a prima facie case that the physician did not commit medical
malpractice.24 Sedlacek’s affidavit thus shifted the burden to
Lombardo to produce admissible contradictory evidence rais-
ing a genuine issue of material fact.25
And, in medical malpractice cases, expert testimony by
a medical professional is normally required to establish the
standard of care and causation under the circumstances.26
Therefore, once the defendant physician in a malpractice case
states that he or she has met the standard of care, the plaintiff
must normally present expert testimony to show that a material
issue of fact exists preventing summary judgment.27
[15] There are only very limited exceptions to the require-
ment of expert testimony to rebut a prima facie case by a
physician stating that he or she met the standard of care,
where the alleged negligence and the causal link to the plain-
tiff’s injuries are presumed to be within the comprehension of
laymen.28 Lombardo does not argue, however, that any such
exception to the need for expert testimony applies to the facts
of his case.
Lombardo’s argument instead is that Sedlacek’s own
statements might have created a material issue of fact, had
Lombardo been given additional time to depose him. While a
defendant physician’s own statements can be used to create a
material issue of fact in a medical malpractice case,29 specula-
tion that such statements might be obtained is a poor indica-
tion that the sought information actually exists. Furthermore,
24
See Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 898
(2008).
25
See id.
26
Simon v. Drake, 285 Neb. 784, 829 N.W.2d 686 (2013).
27
See Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 (2005). See, also,
e.g., Wagner v. Pope, 247 Neb. 951, 531 N.W.2d 234 (1995).
28
See Thone v. Regional West Med. Ctr., supra note 24.
29
See, Fossett v. Board of Regents, 258 Neb. 703, 605 N.W.2d 465 (2000);
Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994).
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Lombardo’s affidavit failed to present good cause as to why he
had not deposed Sedlacek before the June 13, 2016, hearing, at
which discovery was stayed.
The district court did not abuse its discretion in granting
only limited relief under § 25-1335, in the form of a 90-day
continuance of the summary judgment hearing in order for
Lombardo to obtain an expert witness.
Relatedly, the district court did not err in refusing to enter-
tain Lombardo’s motion to compel discovery until the sum-
mary judgment hearing, unless Lombardo designated an expert
witness stating the need for further discovery.
Nor did the court err in ultimately denying Lombardo’s
motion to compel when Lombardo failed to designate an expert
witness by September 13, 2016.
(c) Evidence Not Admitted at
Summary Judgment Hearing
Lastly, Lombardo argues that he was prejudiced in his abil-
ity to present a material issue of fact at the summary judgment
hearing by virtue of the court’s refusal to enter exhibit 35 into
evidence and its denial of Lombardo’s motion for a protec-
tive order.
Lombardo argues that exhibit 35, containing Sedlacek’s
responses to Lombardo’s first set of requests for admission,
would have created a material issue of fact if the court had
admitted it into evidence. Specifically, he asserts that the court
should have recognized as admitted, under § 6-336, several
“unanswered” requests for admission. These allegedly admitted
allegations would, according to Lombardo, have established
that Sedlacek breached his “duty as physician to establish a
thorough and accurate medical history.”30
Section 6-336 states in relevant part, “The matter is admit-
ted unless, within thirty days after service of the request, or
within such shorter or longer time as the court may allow,
30
Brief for appellant at 31.
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the party to whom the request is directed serves upon the
party requesting the admission a written answer or objection
addressed to the matter . . . .” (Emphasis supplied.) Matters
admitted pursuant to § 6-336 are a proper basis for a sum-
mary judgment.31
Section 6-336 is self-enforcing but not self-executing.32 It
requires that a party, claiming another party’s admission by
failure to respond properly to a request for admission, must
prove service of the request for admission and the served
party’s failure to answer or object to the request and must sub-
sequently offer the request for admission as evidence.33 If the
necessary foundational requirements are met and no motion is
sustained to withdraw an admission, the trial court is obligated
to give effect to the provisions of § 6-336.34
While Lombardo’s affidavit in exhibit 35 proved service,
he did not demonstrate Sedlacek’s failure to object to the
request. Exhibit 35 demonstrated that Sedlacek had objected
to the unanswered requests as vague, unclear as to time and
place, sought conclusions of law, sought conclusions as to the
impressions of others, were unintelligible, and/or contained
compound questions. Lombardo did not take issue below with
the fact that the objections referred to several requests simulta-
neously, nor did he take issue with the form of the objections
in his appellate brief.
[16] In a civil case, the admission or exclusion of evidence
is not reversible error unless it unfairly prejudiced a substan-
tial right of the complaining party.35 We conclude that even
31
Wilson v. Misko, 244 Neb. 526, 508 N.W.2d 238 (1993).
32
See, U.S. Bank Nat. Assn. v. Peterson, 284 Neb. 820, 823 N.W.2d 460
(2012); Tymar v. Two Men and a Truck, 282 Neb. 692, 805 N.W.2d 648
(2011); Wibbels v. Unick, 229 Neb. 184, 426 N.W.2d 244 (1988).
33
Id.
34
U.S. Bank Nat. Assn. v. Peterson, supra note 32; Conley v. Brazer, 278
Neb. 508, 772 N.W.2d 545 (2009).
35
In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).
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had the court admitted exhibit 35 into evidence, there would
not have been matters admitted under § 6-336. Moreover,
Lombardo fails to explain how the requests for admission,
which were largely in hypothetical form, would have created
a material issue of fact even if deemed admitted. We find no
prejudicial error in the court’s ruling on exhibit 35.
Lombardo also claims that he was prejudiced by the court’s
refusal to grant his motion for a protective order under HIPAA.
He claims that he could not offer his medical records as evi-
dence at the summary judgment hearing, because they were
not properly protected.
Lombardo fails to point to what provision of HIPAA requires
such a protective order or to any case law supporting his right
to a protective order. And even if Lombardo had entered his
medical records into evidence, they would not have created
a material issue of fact. We agree with the district court that
in order to create a material issue of fact, Lombardo needed
to submit an expert’s opinion that Sedlacek had breached the
applicable standard of care. Thus, again, we find no prejudi-
cial error in the court’s order denying Lombardo’s motion for
a protective order.
VI. CONCLUSION
The district court did not err in continuing the summary
judgment hearing for only the limited purpose of giving
Lombardo more time to hire an expert witness. The court did
not err in relying on Sedlacek’s affidavit in which he averred
that he had met the applicable standard of care. And Lombardo
was not prejudiced by the court’s refusal to enter exhibit 35
into evidence at the summary judgment hearing or by its denial
of Lombardo’s motion for a protective order under HIPAA.
A ffirmed.
Wright and K elch, JJ., not participating.