Eddy v. Builders Supply Co.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/28/2020 08:06 AM CST
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
EDDY v. BUILDERS SUPPLY CO.
Cite as 304 Neb. 804
Wanda Eddy, appellant, v. Builders
Supply Company, Inc., appellee.
___ N.W.2d ___
Filed January 17, 2020. No. S-18-800.
1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 48-185 (Cum. Supp. 2018), an appellate court may modify,
reverse, or set aside a Workers’ Compensation Court decision only when
(1) the compensation court acted without or in excess of its powers; (2)
the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the
order, judgment, or award; or (4) the findings of fact by the compensa-
tion court do not support the order or award.
2. ____: ____. On appellate review, the factual findings made by the trial
judge of the Workers’ Compensation Court have the effect of a jury ver-
dict and will not be disturbed unless clearly wrong.
3. Workers’ Compensation: Judgments: Appeal and Error. In testing
the sufficiency of the evidence to support the findings of fact in a work-
ers’ compensation case, an appellate court considers the evidence in the
light most favorable to the successful party, every controverted fact must
be resolved in favor of the successful party, and the appellate court gives
the successful party the benefit of every inference reasonably deducible
from the evidence.
4. Workers’ Compensation: Pretrial Procedure. The Workers’
Compensation Court’s authority to enforce compliance with reasonable
discovery is as broad as that of any trial court in Nebraska.
5. 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.
6. 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.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
EDDY v. BUILDERS SUPPLY CO.
Cite as 304 Neb. 804
7. Pretrial Procedure. A party has a right to have interrogatories answered,
and the duty to supplement answers previously given in response to an
adversary’s interrogatories is a continuing duty.
8. Rules of the Supreme Court: Pretrial Procedure. A party’s failure
to answer properly served interrogatories or to seasonably supplement
discovery responses may be grounds for sanctions imposed under Neb.
Ct. R. Disc. § 6-337.
9. ____: ____. To avoid sanctions under Neb. Ct. R. Disc. § 6-337, an
interrogated party must either answer or object to the interrogatories
or move for a protective order relieving the interrogated party from
answering the interrogatories.
10. ____: ____. Sanctions under Neb. Ct. R. Disc. § 6-337 exist not only
to punish those whose conduct warrants a sanction but to deter those,
whether a litigant or counsel, who might be inclined or tempted to
frustrate the discovery process by their ignorance, neglect, indifference,
arrogance, or, much worse, sharp practice adversely affecting a fair
determination of a litigant’s rights or liabilities.
11. Rules of the Supreme Court: Pretrial Procedure: Appeal and Error.
An appropriate sanction under Neb. Ct. R. Disc. § 6-337 is deter-
mined in the factual context of a particular case and is initially left to
the discretion of the trial court, whose ruling on a request for sanc-
tion or a sanction imposed will be upheld in the absence of an abuse
of discretion.
12. Pretrial Procedure: Expert Witnesses. In determining whether to
exclude testimony of an expert witness called by a party who has
failed to comply with a request for discovery, the trial court should
consider the explanation, if any, for the party’s failure to respond,
or respond properly, to a request for discovery concerning an expert
witness, importance of the expert witness’ testimony, surprise to the
party seeking preclusion of the expert’s testimony, needed time to
prepare to meet the testimony from the expert, and the possibility of
a continuance.
13. 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.
14. Motions for Continuance: Time. A continuance is ordinarily the
proper method for dealing with a claim that there has been a failure to
disclose in a timely manner.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
EDDY v. BUILDERS SUPPLY CO.
Cite as 304 Neb. 804
15. Motions for Continuance: Appeal and Error. A motion for continu-
ance is addressed to the discretion of the trial court, whose ruling will
not be disturbed on appeal in the absence of an abuse of discretion.
16. Workers’ Compensation. As the trier of fact, the Workers’ Compensation
Court is the sole judge of the credibility of witnesses and the weight to
be given testimony.
17. Workers’ Compensation: Negligence: Evidence: Appeal and Error.
An appellate court gives considerable deference to a trial judge’s deter-
mination of whether particular conduct amounted to willful negligence.
If the record contains evidence to substantiate the factual conclusions
reached by the trial judge of the compensation court, an appellate court
is precluded from substituting its view of the facts for that of the com-
pensation court.
18. Appeal and Error. An appellate court will not consider an issue on
appeal that was not passed upon by the trial court.
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Affirmed.
Joseph S. Risko and Nicholas W. O’Brien, Senior Certified
Law Student, of Carlson & Burnett, L.L.P., for appellant.
Robert Kinney-Walker, of Law Office of James Nubel, for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Wanda Eddy appeals from an adverse decision of the
Nebraska Workers’ Compensation Court. The court excluded
the testimony of Eddy’s expert witness as a discovery sanction,
denied her motion to continue trial, and dismissed her petition
after finding that she intentionally shot herself in the head with
a nail gun. Eddy contends on appeal that the compensation
court abused its discretion. For the reasons set forth below,
we affirm.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
EDDY v. BUILDERS SUPPLY CO.
Cite as 304 Neb. 804
BACKGROUND
On September 24, 2015, a 3⁄4-inch nail became fully imbed-
ded in Eddy’s right temple while she was at work for Builders
Supply Company, Inc. (Builders Supply). Eddy claims that on
the day of her injury, as part of her employment with Builders
Supply, she connected her nail gun to an airhose and the gun
misfired lodging a nail in her right temple. The nail fully sub-
merged underneath her skin and partially penetrated her skull
at nearly a right angle, tilted slightly upward. There were no
eyewitnesses as to how the injury occurred.
In November 2015, Builders Supply issued a formal letter
to Eddy denying her workers’ compensation claim, stating that
she had intentionally injured herself. In October 2016, Eddy
filed a petition in workers’ compensation court which alleged
that she had sustained a “severe and permanent brain injury” as
a result of an accident with the nail gun. Builders Supply filed
an answer which alleged that Eddy’s claim is barred, because
she “deliberately shot herself in the head with the nail gun.”
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
EDDY v. BUILDERS SUPPLY CO.
Cite as 304 Neb. 804
Trial in the matter was originally scheduled for June 2017,
but was continued to November upon stipulation of the par-
ties. In October, Eddy moved to continue the trial. Over
Builders Supply’s objection, the court granted Eddy’s motion
and rescheduled trial for February 2018. In January 2018, Eddy
filed a motion for partial summary judgment. On February
2, Eddy filed a motion in limine which argued that Builders
Supply had willfully destroyed evidence when it disposed of
some of the nail guns used in its “‘trim shop.’” The court
granted Builders Supply’s request to set a hearing on the
motions to take place on the previously scheduled February
trial date. The court denied Eddy’s motions on March 16 and
rescheduled trial for April 25. On the morning of trial, the court
granted Eddy’s motion to bifurcate trial over Builders Supply’s
objection. Trial proceeded on the issue of liability only. The
primary issue for trial was whether Eddy intentionally injured
herself or was injured in an accident.
Prior to the presentation of Eddy’s case in chief, the court
considered Builders Supply’s motion to exclude the testimony
of Eddy’s expert witness, Ralph Barnett. Builders Supply
argued that Eddy had not identified Barnett as an expert until 2
weeks before trial, did not specify that Barnett would provide
live testimony rather than testimony through a report until 5
days prior to trial, and did not disclose Barnett’s opinions or
his reasons for his opinions. Builders Supply offered into evi-
dence an interrogatory submitted to Eddy on October 18, 2016,
requesting the identity of any expert witnesses to be called at
trial, a summary of any expert opinion, and the basis for those
opinions. In a letter to Builders Supply dated August 2, 2017,
Eddy’s counsel stated that it had retained Barnett as a consult-
ing expert and requested that the nail gun be made available
for testing. Counsel for Builders Supply responded with a letter
asking for more information. Eddy did not respond to this letter
or move to compel the production of the nail gun.
Eddy provided supplemental answers to discovery on April
11, 2018, which stated: “[Barnett will] offer expert opinions
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
EDDY v. BUILDERS SUPPLY CO.
Cite as 304 Neb. 804
regarding function of Paslode model T250-F16, 16-gauge fin-
ish nailer. Expert opinion documentation will be provided as
soon as received by the responding party. See witness’ CV
attached.” On April 20, Eddy provided supplemental dis-
covery responses which stated that Barnett’s opinions would
be based upon his experience, training, and education in the
field of mechanical engineering and based upon experiments
and tests he conducted with a “Paslode model T250-F16,
16-gauge finish nailer.” The supplemental responses stated
that Barnett’s expected testimony would include, but not be
limited to, the mechanical function of the nail gun, the fea-
sibility of misfiring upon connecting it to an air supply, and
the penetrative force of a “3/4-inch brad nail” fired from the
nail gun. With the supplemental responses, Eddy provided 174
pages of material relied upon by those in the field of mechani-
cal engineering, which Barnett had reviewed in preparing
his testimony.
Following argument, the court sustained the motion to
exclude Barnett’s testimony due to Eddy’s failure to disclose
the opinions he would offer. The court found that pursuant to
Norquay v. Union Pacific Railroad,1 Eddy had not complied
with the rules of discovery.
Eddy moved to continue trial to give Builders Supply an
opportunity to depose Barnett. The court denied the motion.
The court found that Eddy retained Barnett in the summer of
2017; that at the time of trial, no opinion of Barnett’s had been
disclosed; that Eddy had already been granted one continuance;
and that the court had cleared 2 days for trial and the witnesses
were present and ready to testify.
The court heard testimony from Barnett as an offer of proof.
Barnett is a professor of mechanical and aerospace engineering
at a university in Chicago, Illinois, and has been practicing as
a mechanical engineer since 1969. He is the owner and head
1
Norquay v. Union Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146
(1987).
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EDDY v. BUILDERS SUPPLY CO.
Cite as 304 Neb. 804
engineer of a mechanical engineering firm which specializes
in the safety of mechanical devices. Barnett was engaged to
analyze two mechanical issues with respect to the nail gun
used by Eddy. First, whether it was feasible for a nail gun
to discharge a nail when plugged into an air source. Second,
whether the location of the nail in Eddy’s head showed that she
did not intentionally shoot herself in the head with a nail gun.
An x ray in evidence, reproduced above as exhibit 142, shows
that the nail fully penetrated the outside of Eddy’s head and
partially entered her skull. To evaluate these issues, Barnett
conducted tests using an exemplar nail gun with the same make
and model number as used by Eddy. He also reviewed a user’s
manual and contacted the manufacturer.
As to the first issue, Barnett opined that based on his knowl-
edge of the nail gun industry, it is possible for a nail gun to
fire a single nail when connected to an air source, even with-
out engaging the barrel and trigger safeties on the device, if
the device has aged and its parts have worn. As to the second
issue, Barnett tested the penetrative force of the nail gun by fir-
ing it with the barrel pressed up against various items such as
a coconut and hardwoods. The nails countersunk through these
objects, meaning the heads of the nails traveled completely
through the materials. Based on these tests, and his education
and experience, Barnett opined that Eddy’s injury could only
have been caused by a “missile” nail, discharged from a dis-
tance, because the nail had only partially penetrated her skull.
Barnett stated that had the nail gun been pressed against her
head when fired, the nail would have fully penetrated the skull
and entered her brain.
During trial, the court heard testimony from numerous wit-
nesses, including Eddy and her husband, who also worked
for Builders Supply. Eddy denied that she had attempted sui-
cide and claimed that the gun had misfired. She testified that
nails had accidentally been fired in the past, which her hus-
band confirmed during his testimony, as did other coworkers
who testified.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
EDDY v. BUILDERS SUPPLY CO.
Cite as 304 Neb. 804
Evidence was offered that Eddy was under stress from
family issues, including being physically and verbally abused
by her adult children, who were incarcerated at the time of
trial, and caring for her grandchildren. Eddy stated that she
kept a loaded handgun in her home at the time of her injury
and that she could have used the handgun had she wanted to
kill herself. Records from medical professionals who treated
Eddy after the incident stated that Eddy was not at risk of
suicidal behavior.
A poem written by Eddy on a Builders Supply envelope was
found at her work desk following her injury. Eddy testified she
wrote the poem on September 17, 2015. The poem as printed
on the envelope read:
It’s To late
Now The clock has
Spun my hours have passed
My time is Done
The word I Leave with
are in my heart
You’ve always knewn Them
Right From The start
I use to hold you in
my arms Now I only
hold you in my heart
But my time is up
Now it’s time to
Part Just Know I
take you with me
all The love within
my Heart
Eddy posted the poem on her social media account along
with a picture of her father and of her mother-in-law, who
had both passed away. Eddy then made another post for her
mother, also deceased, who was not included in the first post
by mistake. Eddy denied that the poem was a suicide note and
stated that the poem was meant to provide “closure” regarding
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
EDDY v. BUILDERS SUPPLY CO.
Cite as 304 Neb. 804
her mother’s death. She stated that she was inspired to write
the poem because she was working at a saw table in the shop,
which is the same location where she learned of the passing of
each family member.
Employees of Builders Supply testified that the nail gun
worked properly on the day Eddy was injured. They testified
that the nail gun has both a barrel safety and a trigger safety,
that both safeties must be activated in order for the nail gun
to fire, and that therefore a nail gun would not fire when
plugged into an airhose. They videotaped tests using the nail
gun to show that even if the gun were rigged to fire from a
distance, the nail would not countersink beneath skin and pen-
etrate bone.
Eddy’s supervisor testified that on the morning of her injury,
Eddy came to him and stated that she had to leave work to
pick up her grandchild at the hospital. She did not mention that
she had been injured. The warehouse manager testified that at
times Eddy appeared “emotionally distraught” at work.
In its posttrial order, the compensation court found that the
preponderance of the evidence demonstrated that Eddy inten-
tionally shot herself in the head with the nail gun. Based on
its review of the testimony and exhibits, the court accepted
Builders Supply’s position that the nail gun can fire a nail only
when the barrel and trigger safeties are engaged and that the
nail would not have countersunk into Eddy’s head if her injury
happened in the way she described.
The court pointed to inconsistencies in Eddy’s accounts of
the incident. At trial, Eddy testified that the nail gun acciden-
tally misfired when she attached the gun to the airhose. But in
a video recorded while Eddy was in the hospital following her
injury, she stated that she dropped the nail gun and then it mis-
fired. The court also cited to two statements that Eddy made
to medical professionals which indicated that the nail gun was
pointed at her head, a fact which Eddy declined to admit while
testifying from the witness stand. The court found that the
preponderance of the evidence showed that the nail gun was
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EDDY v. BUILDERS SUPPLY CO.
Cite as 304 Neb. 804
pressed up against Eddy’s head and fired when the two safeties
were engaged. The court further concluded that Eddy had acted
intentionally and with willful negligence and that her injury
was not covered under the Nebraska Workers’ Compensation
Act. Eddy appealed. We moved the appeal to our docket pursu-
ant to our statutory authority to regulate the caseloads of the
appellate courts of this State.2
ASSIGNMENTS OF ERROR
Eddy assigns that the workers’ compensation court (1)
abused its discretion when it sustained Builders Supply’s
motion to exclude the testimony of Barnett, (2) abused its dis-
cretion in denying her motion to continue, (3) erred in entering
an order of dismissal without sufficient evidence regarding the
mechanical function of the nail gun, and (4) erred in determin-
ing that she willfully attempted suicide without considering
psychological evaluations and medical opinions showing that
she was not suicidal.
STANDARD OF REVIEW
[1] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018),
an appellate court may modify, reverse, or set aside a Workers’
Compensation Court decision only when (1) the compensation
court acted without or in excess of its powers; (2) the judgment,
order, or award was procured by fraud; (3) there is not suffi-
cient competent evidence in the record to warrant the making of
the order, judgment, or award; or (4) the findings of fact by the
compensation court do not support the order or award.3
[2,3] On appellate review, the factual findings made by
the trial judge of the Workers’ Compensation Court have the
effect of a jury verdict and will not be disturbed unless clearly
wrong.4 In testing the sufficiency of the evidence to support
2
See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2018).
3
St. John v. Gering Public Schools, 302 Neb. 269, 923 N.W.2d 68 (2019).
4
Krause v. Five Star Quality Care, 301 Neb. 612, 919 N.W.2d 514 (2018).
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EDDY v. BUILDERS SUPPLY CO.
Cite as 304 Neb. 804
the findings of fact in a workers’ compensation case, an appel-
late court considers the evidence in the light most favorable to
the successful party, every controverted fact must be resolved
in favor of the successful party, and the appellate court gives
the successful party the benefit of every inference reasonably
deducible from the evidence.5
ANALYSIS
In her first two assignments of error, Eddy argues that the
compensation court acted without or in excess of its pow-
ers when it excluded the testimony of her expert witness and
denied her motion for a continuance to allow Builders Supply
to depose her expert. In her final two assignments of error,
Eddy argues that the compensation court’s determination that
she acted with willful negligence at the time of her injury
is not supported by sufficient evidence. Upon review of the
arguments Eddy has asserted on appeal, we conclude that her
assignments of error are without merit. The compensation court
acted within its authority and rendered a decision based on suf-
ficient evidence.
Rules of Discovery
Eddy contends that the district court abused its discretion in
excluding her expert’s testimony, because she provided infor-
mation regarding her expert as soon as it became available and
because her expert’s testimony was critical to her claim that
her injury was caused by a mechanical malfunction. Builders
Supply argues in response that Eddy knew that her expert
was an important witness months before trial; that there is no
excuse for Eddy’s late designation of her expert as a testifying
witness; and that at the time of trial, she had not disclosed any
of her expert’s opinions or the reasons for those opinions.
[4-6] Discovery in the Workers’ Compensation Court is
governed by the Nebraska Court Rules of Discovery in Civil
5
Id.
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EDDY v. BUILDERS SUPPLY CO.
Cite as 304 Neb. 804
Cases, Neb. Ct. R. Disc. §§ 6-301 to 6-337 (rev. 2016).6 A
workers’ compensation court’s authority to enforce compliance
with reasonable discovery is as broad as that of any trial court
in Nebraska.7 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.8
An abuse of discretion occurs when a trial court’s decision
is based upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason,
and evidence.9
The primary purpose of the discovery process is to explore
all available and properly discoverable information to narrow
the fact issues in controversy so that a trial may be an efficient
and economical resolution of a dispute.10 The discovery proc­
ess also provides an opportunity for pretrial preparation so
that a litigant may conduct an informed cross-examination.11
Moreover, pretrial discovery enables litigants to prepare for a
trial without the element of an opponent’s tactical surprise, a
circumstance which might lead to a result based more on coun-
sel’s legal maneuvering than on the merits of the case.12
The liberal discovery of potential testimony of an expert
witness is not merely for convenience of the court and litigants,
but exists to make the task of the trier of fact more manageable
by means of an orderly presentation of complex issues of fact.13
Section 6-326(b)(4)(A)(i) provides:
6
See Workers’ Comp. Ct. R. of Proc. 4 (2009).
7
Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011). See
Neb. Rev. Stat. § 48-162(1) (Reissue 2010).
8
Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017).
9
Id.
10
Paulk v. Central Lab. Assocs., 262 Neb. 838, 636 N.W.2d 170 (2001).
11
Id.
12
Id.
13
See Norquay, supra note 1.
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EDDY v. BUILDERS SUPPLY CO.
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A party may through interrogatories require any other
party to identify each person whom the other party
expects to call as an expert witness at trial, to state the
subject matter on which the expert is expected to testify,
and to state the substance of the facts and opinions to
which the expert is expected to testify and a summary of
the grounds for each opinion.
[7] Under § 6-326(e)(1)(B), a party is under a duty sea-
sonably to supplement a response to a request for discovery
directed toward the identity of each person expected to be
called as an expert witness at trial, the subject matter on
which the expert is expected to testify, and the substance of
the expert’s testimony. A party has a right to have interrogato-
ries answered, and the duty to supplement answers previously
given in response to an adversary’s interrogatories is a continu-
ing duty.14
[8,9] A party’s failure to answer properly served interroga-
tories or to seasonably supplement discovery responses may be
grounds for sanctions imposed under § 6-337.15 The court “may
make such orders in regard to the failure as are just”16 or may
enter “[a]n order refusing to allow the disobedient party to sup-
port or oppose designated claims or defenses, or prohibiting him
or her from introducing designated matters in evidence.”17 For
preclusion of testimony as a sanction for noncompliance with
a duty to answer interrogatories under § 6-326(b)(4)(A)(i) or a
duty to provide supplemental responses under § 6-326(e)(1)(B),
§ 6-337 does not require noncompliance with a prior order for
discovery.18 To avoid sanctions under § 6-337, an interrogated
party must either answer or object to the interrogatories or
14
See, Larkin v. Ethicon, Inc., 251 Neb. 169, 556 N.W.2d 44 (1996);
Norquay, supra note 1.
15
See Paulk, supra note 10.
16
§ 6-337(b)(2).
17
§ 6-337(b)(2)(B).
18
See Norquay, supra note 1.
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EDDY v. BUILDERS SUPPLY CO.
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move for a protective order relieving the interrogated party
from answering the interrogatories.19
[10,11] Sanctions under § 6-337 exist not only to pun-
ish those whose conduct warrants a sanction but to deter
those, whether a litigant or counsel, who might be inclined
or tempted to frustrate the discovery process by their igno-
rance, neglect, indifference, arrogance, or, much worse, sharp
practice adversely affecting a fair determination of a litigant’s
rights or liabilities.20 An appropriate sanction under § 6-337
is determined in the factual context of a particular case and is
initially left to the discretion of the trial court, whose ruling on
a request for sanction or a sanction imposed will be upheld in
the absence of an abuse of discretion.21
[12] As we held in Norquay, in determining whether to
exclude testimony of an expert witness called by a party who
has failed to comply with a request for discovery, the trial
court should consider the explanation, if any, for the party’s
failure to respond, or respond properly, to a request for dis-
covery concerning an expert witness, importance of the expert
witness’ testimony, surprise to the party seeking preclusion of
the expert’s testimony, needed time to prepare to meet the tes-
timony from the expert, and the possibility of a continuance.
Regarding Eddy’s explanation for failing to comply with
discovery, she argues that she supplemented her discovery
responses with information about Barnett’s testimony as soon
as it became available.
Builders Supply argues that “[w]hether through neglect or
litigation strategy, there was no valid reason to wait until a
couple of weeks before trial to obtain an expert witness.”22
Builders Supply concedes that Eddy provided information
regarding her expert as soon as the information became known
19
Id.
20
Id.
21
Id. See Schindler v. Walker, 256 Neb. 767, 592 N.W.2d 912 (1999).
22
Brief for appellee at 10.
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to her. It argues that the issue is not Eddy’s failure to supple-
ment her discovery responses, but, rather, the issue is Eddy’s
fundamental failure to disclose any expert opinions prior to
trial. We agree with Builders Supply.
The compensation court stated in its posttrial order that it
excluded Barnett as a witness because
he was disclosed in too close proximity to the trial date
and because his opinions and the basis for his opinions
(whatever they were) were never disclosed to [Builders
Supply] prior to trial. . . . While [Eddy] disclosed the top-
ics upon which [Barnett] would testify, his opinions were
never disclosed. . . . With the accident having happened
on September 24, 2015, there was no reason [Eddy] could
not have retained [Barnett] and obtained his opinions
long before the last week to ten days before trial.
(Citations omitted.)
[13] 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.23 “Fed.R.Civ.P. 26(b)(4)(A)(i)
requires an expert witness to answer interrogatories and reveal
the substance of the facts underlying his or her opinion in
order to allow the opposing party to prepare an effective cross-
examination.”24 In Uresil Corp. v. Cook Group, Inc., the court
found that under “Fed.R.Civ.P. 26(b)(4)(A)(i) . . . when answer-
ing interrogatories directed at expert testimony one must pre-
cisely state the subject matter upon which the answer is based,
explain the terms used in the answer, and disclose potential
theories of the expert testimony.”25 In Williams v. McNamara,
the court found answers to the interrogatories as inadequate
23
See Gernstein v. Lake, 259 Neb. 479, 610 N.W.2d 714 (2000).
24
Day v. NLO, Inc., 147 F.R.D. 144, 146 (S.D. Ohio 1993).
25
Uresil Corp. v. Cook Group, Inc., 135 F.R.D. 168, 171-72 (N.D. Ill. 1991).
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EDDY v. BUILDERS SUPPLY CO.
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when they did not “inform the defendants of what the testi-
mony of the expert will be at trial so that the defendants can
gather evidence to rebut the expert’s opinions.”26 The Williams
court viewed as essential that the “‘substance of the opinions’”
be stated in a manner that would “inform the interrogating
party of the reasons or bases for the opinions. Otherwise, the
answers are in large measure useless . . . .”27
The record shows that in October 2016, Builders
Supply submitted to Eddy an interrogatory fashioned from
§ 6-326(b)(4)(A)(i) which requested information regarding
potential expert testimony. Eddy retained Barnett as a con-
sultant in the summer of 2017. Eddy did not disclose that
she intended for Barnett to testify as an expert witness until
2 weeks before trial in April 2018. Even then, Eddy never
disclosed Barnett’s opinions or his reasons for those opinions.
In her first supplemental discovery answers provided on April
11, 2018, Eddy stated that Barnett would offer expert opin-
ions regarding the function of the “Paslode model T250-F16,
16-gauge finisher nailer.” In her second supplemental answers
provided on April 20, Eddy stated that Barnett would offer
expert opinions regarding the function of that model of nail
gun; the feasibility of misfiring upon connecting that model
of nail gun to an air supply; and the penetrative force of
a “3/4-inch brad nail” fired from that model of nail gun.
Nothing within either set of supplemental answers would
have informed Builders Supply of what opinions Barnett
would offer at trial or the reasons or rationale behind those
opinions so that Builders Supply could gather evidence to
rebut those opinions. Neither did Eddy object or move for a
protective order to relieve herself from her disclosure obli-
gations. We find nothing in the record that would excuse
Eddy from making these disclosures if she wished to utilize
Barnett’s testimony.
26
Will. v. McNamara, 118 F.R.D. 294, 296 (D. Mass. 1988).
27
Id.
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Eddy also argues that Barnett’s testimony was integral to
her claim that the nail gun malfunctioned. Given that the
compensation court’s posttrial findings placed significant
emphasis on the mechanical function of the nail gun, we
agree with Eddy that Barnett’s testimony went to a critical
issue in this case. At the same time, we observe that the
arguments Eddy makes on appeal regarding the necessity of
Barnett’s testimony are somewhat different than the argu-
ments she made to the compensation court when it was con-
sidering the motion to exclude. Eddy argued that Barnett was
essential to provide rebuttal testimony to Builders Supply’s
expert on the functionality of the nail gun. The compensa-
tion court rejected this argument, stating that Eddy knew of
Builders Supply’s expert for several months prior to disclos-
ing Barnett as a testifying expert. More importantly though,
the court did not permit Builders Supply to call its expert
witness because the parties had failed to stipulate that the
expert could testify telephonically. Therefore, both sides pre-
sented their opposing theories regarding the functionality of
the nail gun through testimony from multiple lay witnesses.
Although Barnett was an important witness, there was no
expert testimony for Eddy to rebut and she was not prevented
from presenting witnesses who supported her theory that the
nail gun misfired.
Lastly, Eddy argues that Builders Supply was not unduly
surprised and had adequate time to prepare for Barnett’s testi-
mony. We disagree. The first time Builders Supply learned of
Barnett’s opinions was during his offer of proof on the morn-
ing of the first day of trial. Allowing Barnett to offer undis-
closed expert testimony would have forced Builders Supply
to conduct an uninformed cross-examination of an important
witness. Builders Supply would have been unfairly surprised
by the bases for Barnett’s opinions, because Eddy did not pro-
vide a full description of the tests Barnett had conducted or
explain why his tests led him to form his opinions. Litigants
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are required to disclose a description of tests that support an
expert’s opinion.28
The issue of whether it is appropriate for a court to exclude
a witness as a discovery sanction depends on the factual
context of each case. In the context of Eddy’s delays of trial
in this case, we agree with Builders Supply’s argument that
the substance of Barnett’s testimony supports the compensa-
tion court’s decision to exclude Barnett, because it demon-
strates Eddy’s lack of excuse for nondisclosure. Eddy knew
Builders Supply’s position since she received the denial letter
in November 2015. Neither side changed its theory of the case
since the initial pleadings were filed in October 2016. The
sole factual dispute in the case was whether Eddy’s injury was
intentional or accidental. Yet, the record indicates that Eddy
herself did not know what Barnett’s testimony would be until
the week prior to trial.
The court’s decision to exclude the testimony of Barnett
ensured that Builders Supply had a fair determination of its
rights. Eddy’s contention that the compensation court abused
its discretion in excluding the testimony of Barnett as a sanc-
tion under § 6-337 is without merit.
Motion to Continue
[14,15] Eddy next contends that the compensation court
abused its discretion in denying her motion to continue trial.
Continuances are governed by the Workers’ Comp. Ct. R.
of Proc. 8 (2011), which states in part that “[a] continu-
ance may be granted at the discretion of the trial judge if
good cause is shown.” A continuance is ordinarily the proper
method for dealing with a claim that there has been a failure
to disclose in a timely manner.29 A motion for continuance
is addressed to the discretion of the trial court, whose ruling
28
See, Norquay, supra note 1; John P. Lenich, Nebraska Civil Procedure
§ 22:2 (2019).
29
Johnson v. Ford New Holland, 254 Neb. 182, 575 N.W.2d 392 (1998).
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will not be disturbed on appeal in the absence of an abuse
of discretion.30
Eddy contends that there was good cause for a continuance
due to the importance of Barnett’s testimony and the need to
allow Builders Supply to depose Barnett, an expense which
Eddy offered to cover.
In considering whether Eddy’s stated reasons for a con-
tinuance satisfy the good cause standard under rule 8 of the
Workers’ Compensation Court rules of procedure, we consider
Eddy’s motion in the context of the procedural history of the
instant case. Eddy filed her petition on October 3, 2016. In
March 2017, the court set the initial trial date for June 27.
In May, the parties stipulated to continue trial in a joint fil-
ing. In June, the court set a trial date of November 14. On
October 24, Eddy moved for a continuance. The court granted
the motion over Builders Supply’s objection and scheduled
trial for February 8 and 9, 2018. Eddy filed a motion for par-
tial summary judgment a month before trial was to begin in
February and filed a motion in limine on February 2, a week
before the scheduled trial. The court granted Builders Supply’s
request for a continuance and rescheduled the trial for April 25
and 26. Eddy then moved for a second continuance on April
25. The compensation court entered its order of dismissal on
July 18. Another continuance would have reopened discovery
and required the court to schedule another 2 days for trial,
which would have delayed resolution of the case further. This
timeline indicates that Eddy did not show good cause to con-
tinue trial, and the compensation court did not act unreason-
ably when it declined to again continue trial and permit the
further delay of resolution of this case.
Eddy further contends that good cause for a continuance
existed because Barnett’s opinion became available only
shortly before trial. Eddy alleges that not until March 2018
30
Grady v. Visiting Nurse Assn., 246 Neb. 1013, 524 N.W.2d 559 (1994);
Stewart v. Amigo’s Restaurant, 240 Neb. 53, 480 N.W.2d 211 (1992).
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did she become aware that an expert witness would be neces-
sary to rebut Builders Supply’s argument that Eddy caused her
own injury.
However, Builders Supply denied Eddy’s claim in November
2015 for the reason that Eddy caused her own injury. In
October 2016, Builders Supply filed an answer again alleging
Eddy caused her own injury. Also in October 2016, Builders
Supply sought discovery to identify whether Eddy intended to
call an expert and, if so, what the expert’s opinion would be. In
August 2017, Eddy notified Builders Supply that Barnett had
been retained as a consulting expert and discussed the need to
examine the nail gun. Not until April 11, 2018, did Eddy sup-
plement her discovery to identify that Barnett would be called
to offer expert opinions regarding the function of the nail gun.
And on April 20, Eddy supplemented her discovery yet again
to indicate that Barnett would be called to testify live at trial
on April 25.
The record shows that Eddy’s untimely disclosures were
not caused by a lack of awareness that an expert was needed
to rebut Builders Supply’s allegation that Eddy caused her
own injury as that allegation was clear as early as November
2015 and continued to be clear throughout the pendency of
this matter. Any prejudice that may have been cured through
a continuance does not excuse Eddy’s lack of diligence and
does not overcome the unfairness to Builders Supply in delay-
ing its trial and forcing it to continue to prepare its defense
by deposing an undisclosed expert. As a result, Eddy did not
show good cause to continue trial, and the compensation court
did not abuse its discretion in declining to grant Eddy a sec-
ond continuance.
Sufficient Evidence of
Willful Negligence
Neb. Rev. Stat. § 48-101 (Reissue 2010) provides that when
personal injury is caused to an employee by accident, aris-
ing out of and in the course of his or her employment, such
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employee shall receive compensation from the employer if the
employee was not willfully negligent at the time of receiving
such injury. Under Neb. Rev. Stat. § 48-107 (Reissue 2010),
the employer bears the burden to prove the employee’s willful
negligence. An employee’s mere negligence is not sufficient
to constitute willful negligence.31 As relevant here, Neb. Rev.
Stat. § 48-151(7) (Reissue 2010) defines the term “willfully
negligent” as a deliberate act or as conduct evidencing a reck-
less indifference to safety. Absent extraordinary circumstances,
suicide constitutes willful negligence under § 48-151.32
[16,17] As the trier of fact, the Workers’ Compensation Court
is the sole judge of the credibility of witnesses and the weight
to be given testimony.33 An appellate court gives considerable
deference to a trial judge’s determination of whether particular
conduct amounted to willful negligence. If the record contains
evidence to substantiate the factual conclusions reached by
the trial judge of the compensation court, an appellate court is
precluded from substituting its view of the facts for that of the
compensation court.34
Eddy contends that the compensation court erred in finding
that she acted with willful negligence. Eddy first argues that
the court lacked sufficient evidence regarding the mechani-
cal function of the nail gun. As mentioned above, the court
heard evidence from Eddy, her husband, and Eddy’s coworkers,
who testified that the nail gun could have misfired. The court
also heard evidence from Builders Supply employees such as
Eddy’s supervisor and the warehouse manager, who testified
31
See Guico v. Excel Corp., 260 Neb. 712, 619 N.W.2d 470 (2000).
32
Breckenridge v. Midlands Roofing Co., 222 Neb. 452, 384 N.W.2d 298
(1986). See Michael B. v. Northfield Retirement Communities, 24 Neb.
App. 504, 891 N.W.2d 698 (2017).
33
Wilson v. Larkins & Sons, 249 Neb. 396, 543 N.W.2d 735 (1996);
Hernandez v. Hawkins Constr. Co., 240 Neb. 129, 480 N.W.2d 424 (1992).
34
Estate of Coe v. Willmes Trucking, 268 Neb. 880, 689 N.W.2d 318 (2004);
Guico, supra note 31; Spaulding v. Alliant Foodservice, 13 Neb. Ct. App. 99,
689 N.W.2d 593 (2004).
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that the nail gun would not have fired unless both safeties
were engaged. The court drew upon evidence in the record to
resolve this factual dispute. The court considered the physical
evidence and determined that the nail could only have become
embedded in Eddy’s right temple at nearly a right angle if the
gun was pointed at Eddy’s head. The court also handled the gun
and simulated Eddy’s version of events by holding the nail gun
near the head in one hand while plugging the nail gun into an
imaginary airhose with the other hand. The court determined
that it was “physically uncomfortable” to hold the nail gun in
this position and found that it was unlikely that the accident
happened in the manner Eddy described.
The court also made clear that it did not find Eddy’s tes-
timony credible. For example, the court noted that Eddy’s
behavior after the injury was not consistent with an accident—
she left work early shortly after the incident, but instead of
informing her supervisor that she had sustained an injury, she
falsely told him that she had to pick up her grandchild from
the hospital. The court also noted the inconsistencies in Eddy’s
account of the incident and identified Eddy’s conflicting expla-
nations of how the injury occurred.
The compensation court is the sole judge of the credibility
of the witnesses and the weight to be given to testimony. Upon
review of the court’s decision on this issue, we find that the
record contains evidence to substantiate the factual conclusions
reached by the compensation court.
[18] Eddy also contends that the court erred because it
entered its findings absent expert testimony. However, Eddy
has not provided any authority stating that a finding of willful
negligence under § 48-101 requires expert testimony, and Eddy
has not shown that she argued to the compensation court that
it could not render its decision absent expert testimony. An
appellate court will not consider an issue on appeal that was
not passed upon by the trial court.35
35
Cullinane v. Beverly Enters. - Neb., 300 Neb. 210, 912 N.W.2d 774 (2018).
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Eddy further argues that the compensation court failed to
consider medical evidence that she was not suicidal. Eddy con-
tends that the compensation court erred by stating in its post-
trial order that “there are no psychiatric treatment records in
evidence.” We agree with Builders Supply that when properly
understood in the context of the record, the court’s statement
referred to the fact that there were no relevant psychiatrist
records regarding Eddy’s mental health prior to the time of
her injury.
Eddy offered into evidence records from medical profes-
sionals regarding evaluations she received after her injury. A
neurologist who began treating Eddy in March 2016 found no
evidence that she exhibited “pathologically impulsive behav-
ior,” and he opined that the nail gun incident was not an
intentional act to injure herself. A mental health therapist who
evaluated Eddy on January 28, 2016, assessed her as a low sui-
cide risk, as did a psychologist who evaluated Eddy on October
31, 2017. Further, the records indicate that as a result of the
nail gun incident, Eddy experienced a traumatic brain injury,
change in personality, and reduction in functionality, and that
she suffers from anxiety and depression, but is not suicidal.
These records were made after the September 2015 incident
and were generated as a result of Eddy’s medical treatment for
her brain injury.
We find Eddy’s argument to be without merit. First, the
record indicates that the compensation court did consider
Eddy’s postinjury medical records. The court’s order stated that
it “reviewed each exhibit offered and received into evidence.”
Second, the applicable standard of review requires that we
view the evidence in the light most favorable to the successful
party and give the successful party the benefit of every infer-
ence reasonably deducible from the evidence.36 That being the
case, the evidence concerning Eddy’s state of mind after her
36
See Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354
(2007).
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brain injury is not entitled to significant weight, because the
evidence is likely more informative about the effects of Eddy’s
brain injury rather than indicative of Eddy’s state of mind at
the time of her injury.
Last, Eddy argues that Nebraska has a presumption against
suicide, which the court did not significantly consider in its
analysis. In Nebraska, there is a general rule that where a
cause of death is in issue and there is nothing to show how
death was caused, there is a negative presumption against sui-
cide.37 The presumption against suicide is one of law, not of
fact, and is based upon the natural characteristics of persons
for love of life and fear of death.38 Because no cause of death
is at issue in this case, the presumption against suicide is not
applicable here. Even assuming, for the sake of argument, that
the presumption against death by suicide could be extended to
a presumption against an injury resulting from an attempted
suicide, such a presumption could be overcome and rebutted
by the introduction of evidence tending to show how the injury
occurred.39 Our discussion of the record shows that Builders
Supply adduced extensive evidence showing how the circum-
stances of Eddy’s injury were consistent with an intentional
act, including the nature of the injury, the note penned by Eddy,
her behavior, and her personal life.
In addition, there is authority contrary to Eddy’s point
which states that absent extraordinary circumstances, suicide
constitutes willful negligence under § 48-151.40 Nebraska law
has recognized an exception to the rule that suicide constitutes
willful negligence when the evidence shows that suicide was
nonvoluntary.41 Eddy has argued that her injury was the result
of an accident and not due to injuring herself out of a lack of
37
Michael B., supra note 32.
38
Id.
39
See Breckenridge, supra note 32.
40
Id.
41
Friedeman v. State, 215 Neb. 413, 339 N.W.2d 67 (1983).
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free will. There is sufficient evidence in the record to support
the compensation court’s decision under our deferential stan-
dard of review.
CONCLUSION
The compensation court did not abuse its discretion in
excluding the testimony of Eddy’s expert witness as a discov-
ery sanction. The compensation court did not abuse its discre-
tion in declining to grant Eddy a second continuance. The
compensation court did not err in concluding that Eddy had
been willfully negligent.
Affirmed.