Putnam v. Scherbring

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
PUTNAM V. SCHERBRING
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
MARK A. PUTNAM, APPELLANT,
V.
KERI G. SCHERBRING ET AL., APPELLEES.
Filed January 17, 2017. No. A-15-610.
Appeal from the District Court for Douglas County: THOMAS A. OTEPKA, Judge. Affirmed
in part, and in part reversed and remanded for a new trial.
Herbert J. Friedman, of Friedman Law Offices, P.C., L.L.O., and Paul E. Galter, of Butler,
Galter & O’Brien, for appellant.
Mark C. Laughlin and Jacqueline M. DeLuca, of Fraser Stryker, P.C., L.L.O., for appellees.
INBODY, RIEDMANN, and BISHOP, Judges.
BISHOP, Judge.
Mark A. Putnam filed a negligence claim against Keri G. Scherbring, Dale J. Scherbring,
and Janet Scherbring, alleging he was injured in a collision between the vehicle he was driving
and a vehicle driven by Keri but owned by her parents, Dale and Janet. The Scherbrings admitted
that Keri’s negligence caused the collision but denied that the collision proximately caused
Putnam’s injuries, which allegedly resulted in over $100,000 in medical bills. Prior to trial, the
district court for Douglas County granted the Scherbrings’ motion in limine to exclude from
evidence all but a small fraction of Putnam’s medical bills, as well as testimony from one of
Putnam’s expert witnesses that the medical bills were reasonable and necessary. At trial, Putnam
presented evidence of the nature and extent of his injuries and medical treatment but, due to the
court’s ruling on the motion in limine, presented no evidence of his medical bills. A jury returned
a verdict in favor of the Scherbrings, and Putnam appeals.
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After reviewing the circumstances of this case in light of the relevant factors, we conclude
that the district court abused its discretion in excluding, as a discovery sanction, nearly all of
Putnam’s medical bills, as well as testimony from Putnam’s expert witness that the bills were
reasonable and necessary. Therefore, we reverse the judgment in favor of the Scherbrings and
remand for a new trial. However, we affirm the court’s decisions excluding testimony from one of
Putnam’s former coworkers and denying Putnam’s motion for a directed verdict.
FACTUAL BACKGROUND
On the morning of December 17, 2008, Putnam was driving his 2007 Honda Civic
northbound on 72nd Street in Omaha, Nebraska. At the intersection with Jones Street, Putnam
waited for the left turn arrow on the traffic signal to turn green before turning left. At the moment
Putnam turned left toward Jones Street, Keri was driving a 2002 Chrysler Sebring southbound on
72nd Street, holding a cup of coffee. She did not see Putnam’s vehicle until just before the
collision. Although Keri applied her vehicle’s brakes, the road conditions were icy, and she did
not slow down. Her vehicle collided with the passenger side of Putnam’s vehicle at between 35
and 40 m.p.h. Putnam’s vehicle spun around in the intersection, and the passenger-side airbags
deployed. Putnam reported that his head felt “like a pinball” bouncing around in the car. The force
of the collision broke the passenger seat from its anchors. Immediately following the collision,
Putnam complained of pain in his head, neck, shoulders, and upper and lower back.
The collision occurred at the same intersection as Putnam’s place of employment, and some
of Putnam’s coworkers came outside after hearing the accident. After police arrived and took
statements from the drivers, a coworker drove Putnam to the emergency room, where he was given
pain medication and muscle relaxers and was then released. The accident occurred on a
Wednesday, and the following Monday, Putnam saw his primary care physician, Thomas Vinton,
M.D., who prescribed additional pain medication and referred Putnam to physical therapy.
Between December 23, 2008, and April 15, 2010, Putnam attended approximately 77 physical
therapy sessions at two locations. According to Putnam, the sessions did not result in any
significant pain relief.
After Putnam concluded physical therapy, Dr. Vinton referred him to Bruce Godfrey, D.C.,
a licensed chiropractor. Between August and November 2010, Putnam attended 27 sessions with
Dr. Godfrey, undergoing chiropractic adjustments and other therapies. Once it seemed that Putnam
was not progressing, Dr. Godfrey referred him to a pain management center.
At the pain management center, Putnam was seen by H.B. Ghosh, M.D., and John Sanford,
a certified registered nurse anesthetist. Putnam’s first pain management treatment was in
November 2010, and the treatments continued as of the date of trial in June 2015. Each treatment
consisted of a series of pain blocking injections to various areas, including Putnam’s head, neck,
shoulders, and/or lower back. Putnam reported that the injections reduced, but did not eliminate,
his headaches and neck and back pain. At first, the relief resulting from each treatment lasted six
months, but as of the date of trial, it lasted only six weeks.
In addition to undergoing physical therapy, chiropractic treatments, and pain management,
Putnam saw Nicole Liebentritt, M.D., a neurologist, on approximately seven occasions between
January 2009 and August 2013 for treatment of migraine headaches following the car accident. In
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the years following the car accident, Putnam also was prescribed a variety of medications,
including medications for migraines, muscle relaxers, antidepressants to alleviate chronic pain,
narcotic pain relievers, and non-narcotic pain relievers. At the time of trial, Putnam continued to
take ibuprofen, a prescription muscle relaxer, and a prescription migraine medication.
At the jury trial in June 2015, Putnam testified that he did not suffer from headaches or
neck or back pain prior to the accident, other than headaches related to illnesses. He testified that,
following the accident, he experienced constant headaches and occasional migraines, as well as
upper and lower back pain, neck pain and limited range of motion in the neck, and shooting pain
down the right leg. Putnam continued to suffer from these symptoms at the time of trial.
Putnam also believed that his symptoms resulting from the accident had contributed to his
departure from the company in Omaha where he was employed as a district manager at the time
of the accident. He explained that he had lost his job during a “workforce reduction” when the
company was consolidating two offices. Someone else had been selected to lead the new office,
and Putnam believed his irritableness, loss of focus, and other symptoms following the accident
contributed to him not being selected.
Three of Putnam’s medical providers testified at trial. Dr. Vinton testified that he saw
Putnam approximately 32 times in the first two years following the accident, and approximately 5
or 6 times per year after that. Generally, Dr. Vinton summarized Putnam’s complaints and
treatment, including the referrals for physical therapy, chiropractic treatment, pain management,
and neurological evaluation. Dr. Vinton also described his findings on physical examination of
Putnam, which included limited range of motion, muscle spasm, and tenderness. Dr. Vinton
expressed his opinion that Putnam’s headaches and neck and back pain were precipitated by the
car accident. His final diagnosis was “persistent neck pain due to whiplash injury and migraine
headaches and low back pain, chronic.”
Dr. Godfrey also testified regarding his examination and treatment of Putnam. Dr. Godfrey
testified that Putnam complained of neck and back pain and headaches. Upon examination of
Putnam, Dr. Godfrey observed tenderness, muscle tightness, muscle spasm, and “very limited”
range of motion of the neck and lower back. Dr. Godfrey believed the car accident was the cause
of Putnam’s musculoskeletal symptoms.
Sanford testified regarding his history of administering pain blocking injections to
Putnam’s head, neck, and back. The injections were administered to certain nerves and to “trigger
points,” which were areas where Putnam was tender to pain. Sanford testified that it was
“reasonable to say” that the car accident caused Putnam’s symptoms of pain and headaches.
PROCEDURAL BACKGROUND
Putnam filed his complaint against the Scherbrings in April 2012. The Scherbrings
admitted that Keri’s negligence caused the accident but denied the remaining allegations, including
that the collision proximately caused Putnam’s injuries.
In May 2012, the Scherbrings served written interrogatories and requests for production on
Putnam requesting, in pertinent part, all bills or statements of account, including the amounts and
dates of said bills or statements of account, which he alleged were incurred as a result of the
accident. One of the interrogatories also requested Putnam to identify each expert witness he
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intended to call at trial, including the subject matter of each expert’s testimony, the substance of
the facts and opinions to which each expert was expected to testify, and the facts or assumptions
relied on by each expert for each opinion.
In Putnam’s responses to the written interrogatories dated May 31, 2012, he identified the
expert witnesses he intended to call as “[a]ll of the medical persons and chiropractors named
herein,” but he did not disclose the subject matter of each expert’s testimony, or any other
information. (All of Putnam’s medical providers discussed above, except Sanford, were identified
in the interrogatory responses.) In response to the interrogatory requesting bills or statements of
accounts alleged to have resulted from the accident, Putnam listed the hospital, physicians’ offices,
and physical therapy locations where he received treatment, but there is no indication that he
disclosed the amounts or dates of any medical bills at that time.
On October 1, 2013, the district court dismissed Putnam’s action for lack of prosecution
because Putnam had failed to submit a “Proposed Scheduling Order” pursuant to the court’s local
rules. See Rules of Dist. Ct. of Fourth Jud. Dist. 4-10 (rev. 2010). Shortly thereafter, the case was
reinstated on Putnam’s motion. At that time, the court approved a proposed scheduling order
signed by counsel for both sides, which required Putnam to disclose his expert witnesses and the
subject matter of each expert’s testimony by January 15, 2014. The order further required the
parties to complete fact discovery by March 31 and all discovery related to expert witnesses by
April 15. After approving the order, the court scheduled trial for July 23.
On February 6, 2014, after the deadline for disclosing his expert witnesses had passed,
Putnam filed an expert witness list identifying five experts: Dr. Vinton, Dr. Ghosh, Dr. Godfrey,
Dr. Liebentritt, and Todd Suey, a physical therapist. The list did not disclose the subject matter of
each expert’s testimony. Shortly after receiving the list, defense counsel sent a letter to Putnam’s
counsel indicating that the omission of the experts’ opinions made compliance with the scheduling
order “impossible.” Defense counsel suggested that a new scheduling order be obtained.
On February 19, 2014, Putnam filed a motion for a new scheduling order and to continue
trial. Subsequently, the court approved a new scheduling order, requiring Putnam to disclose the
subject matter of each expert’s testimony by April 14. The order also directed the parties to
complete all discovery by September 15. The court continued trial to December 17.
The record discloses that, by at least August 28, 2014, defense counsel had in his possession
reports from Dr. Godfrey, Dr. Vinton, Dr. Ghosh, and Dr. Liebentritt. Generally, the reports briefly
summarized each provider’s treatment of Putnam arising out of the car accident. Dr. Vinton opined
in his report that Putnam’s headaches and neck and back pain were caused by the accident.
However, none of the reports contained an opinion that Putnam’s medical expenses were
reasonable and necessary.
On November 21, 2014, approximately two months after the close of discovery, Putnam’s
counsel filed a motion to continue trial, because he had undergone surgeries to replace a heart
valve and install a pacemaker on November 12 and 15. His expected recovery time was three
months. Counsel indicated that prior to undergoing surgery, he had attempted to locate an attorney
to assist with Putnam’s case but had been unsuccessful. The court granted the motion and
continued trial to February 18, 2015.
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On January 9, 2015, Putnam’s counsel filed another motion to continue trial. He alleged
that following his heart surgery he had located an attorney who was willing to serve as lead counsel
in Putnam’s case. However, the new counsel had fractured his ankle on January 4 and would not
be ready for trial by the scheduled date. Putnam’s original counsel informed the court in an
affidavit that he first sought medical attention for his heart condition in early 2014 and was
prescribed medication that “slowed [him] down both physically and mentally,” causing him to
become fatigued when walking as little as 100 yards. It was only later determined that he needed
surgery. Counsel indicated that due to his physical condition during 2014, he had been “unable to
properly prepare for trial.” Putnam’s new lead counsel indicated in an affidavit that the recovery
time for his fractured ankle was eight weeks, and he also stated that limited additional discovery
may be needed.
On January 23, 2015, the court granted the motion and continued trial to June 24. In the
same order, the court granted Putnam leave to substitute one of his expert witnesses, which was
necessary because counsel had discovered that Dr. Ghosh had retired and that Putnam had received
most of his pain management treatments from Sanford. Otherwise, the court did not reopen
discovery.
On February 18, 2015, Putnam filed a motion to reopen discovery so that, among other
things, he could serve requests for admission on the defense regarding whether Putnam’s medical
expenses were reasonable and necessary. On March 26, Putnam filed a supplemental motion in
which he also sought leave to disclose additional expert witnesses, consisting of two medical
providers to whom Putnam had been referred for evaluation of a possible traumatic brain injury
resulting from the collision.
Following a hearing on March 30, 2015, the district court denied Putnam’s requests to
reopen discovery. The court reasoned that trial had been continued four times at Putnam’s request
and the scheduling order had been amended once. The court further noted that the case had been
pending since April 2012 and concluded that “we’re past the point of any further continuances
. . . or amendments or changes to the discovery deadlines.”
The record reflects that at some point between March 30 and June 2, 2015, Putnam’s
counsel turned over to defense counsel supplemental expert witness reports from Dr. Vinton, Dr.
Godfrey, and Sanford. In Dr. Vinton’s supplemental report, which was dated March 30, the doctor
summarized Putnam’s medical treatment arising out of the accident and, for the first time,
expressed an opinion that the expenses Putnam incurred for his treatment were reasonable. Before
the district court, the Scherbrings’ counsel initially stated that he received Dr. Vinton’s
supplemental report “a month or two” before trial, and later stated that he received it in “late April
of 2015,” which would have been two months before trial. However, on appeal, defense counsel
acknowledges receiving Dr. Vinton’s supplemental report on March 30, which was three months
before trial. While these dates are less than certain, we will assume for purposes of this appeal that
defense counsel received Dr. Vinton’s supplemental report somewhere between two and three
months prior to trial.
On June 5, 2015, defense counsel filed amended motions in limine seeking, in pertinent
part, to exclude from evidence any expert opinions and any medical bills disclosed after the close
of discovery on September 15, 2014, including Dr. Vinton’s opinion as to the reasonableness of
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Putnam’s medical bills. Also in the motion in limine, the Scherbrings sought to exclude the
testimony of Sharon Briggs, a former coworker of Putnam’s who was not disclosed as a witness
until after the close of discovery.
The record reflects that a pretrial conference was held on June 11, 2015; a pretrial order
was entered on June 12. It appears that the motion in limine may have been discussed at that time,
since on the morning of trial, June 24, the court indicated that “when we were here last,” it had
sustained the amended motion in limine in all but one aspect of the motion, which is not pertinent
to this appeal. The court then wanted to clarify one of the issues raised in the motion in
limine--whether Dr. Vinton could testify to his opinion that Putnam’s medical bills were
reasonable and necessary. Defense counsel reiterated that Putnam had not disclosed this opinion
until months after the close of discovery. Putnam’s counsel responded that the medical bills had
been disclosed for “a long, long time” and suggested that defense counsel could not claim surprise
regarding an opinion that the bills were reasonable and necessary, because this type of opinion was
“pretty much of a standard thing.” Putnam’s counsel further argued that, as a matter of fairness,
Putnam should be permitted to introduce his medical bills.
After an extended colloquy with both attorneys regarding the issue, the court ruled that Dr.
Vinton could testify to the reasonableness and necessity of any bills for services that Dr. Vinton
provided to Putnam prior to Dr. Vinton’s deposition on August 20, 2014. The court’s reasoning
seemed to be that, although the reasonableness of Dr. Vinton’s bills was not addressed during the
deposition, defense counsel had the opportunity to explore that issue during the deposition.
Putnam’s counsel informed the court that Dr. Vinton’s charges for services prior to his
deposition were only “a couple hundred bucks” and that the real issue was the bills from other
providers, which the record reflects totaled over $100,000. The court explained that attorneys
usually resolved the issue of the reasonableness of medical bills through a stipulation and stated:
You know, again, I’m sorry that that issue wasn’t resolved by counsel, but I don’t think
it’s -- the Court can or should force the issue. I can’t -- that’s not -- I don’t go there. I don’t
think a court should. Then I’m getting involved in something that’s kind of a
non-evidentiary issue. It’s just something you take up before trial.
The court reiterated that just because a stipulation “hasn’t happened,” it was not going to “force
the issue.”
At trial, Putnam’s counsel offered exhibit No. 17, which was 147 pages of Putnam’s
medical bills from various providers dating from December 23, 2008, to April 2, 2015. Defense
counsel objected on the basis of the motion in limine, as well as foundation, relevance, and hearsay.
The court sustained the objection and excluded the exhibit from evidence. Putnam’s counsel also
made an offer of proof during which Dr. Vinton testified that he had reviewed a summary of
Putnam’s medical expenses contained in exhibit No. 81 (which was not received into evidence and
which appears to be a summary of the bills contained in exhibit No. 17) and had formed an opinion
that the expenses were reasonable and necessary. The listed expenses totaled $106,751.34.
At the close of Putnam’s case-in-chief, Putnam’s counsel moved for a directed verdict on
the issue of “liability,” including “proximate cause.” He argued that the evidence was
“uncontroverted” that Putnam had experienced neck and back pain “from day one.” He argued that
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the only issue that should be submitted to the jury was the nature and extent of his injuries. The
district court denied the motion, reasoning that although the Scherbrings had conceded liability for
the accident, it was “a jury question and a credibility issue” whether “the accident was the
proximate cause of any damages.”
Because Putnam had not presented any evidence of medical expenses, the court excluded
any reference to past and future medical expenses in the jury instruction on damages. (Putnam’s
counsel made comments suggesting that because Dr. Vinton’s bills constituted only a small
fraction of the total medical bills, counsel had made a strategic decision not to offer Dr. Vinton’s
bills in light of the exclusion of all of the other bills.)
The jury returned a verdict in favor of the Scherbrings, and Putnam timely appealed.
ASSIGNMENTS OF ERROR
Putnam assigns, restated, that the district court erred in (1) excluding Putnam’s medical
bills from evidence; (2) excluding Dr. Vinton’s expert opinion that Putnam’s medical bills were
reasonable and necessary; (3) excluding Briggs’ testimony; and (4) denying Putnam’s motion for
a directed verdict.
STANDARD OF REVIEW
The determination of an appropriate discovery sanction rests within the discretion of the
trial court, and an appellate court will not disturb it absent an abuse of discretion. Hill v. Tevogt,
293 Neb. 429, 879 N.W.2d 369 (2016). A judicial abuse of discretion exists when the reasons or
rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and
denying just results in matters submitted for disposition. Id.
A directed verdict is proper at the close of all the evidence only when reasonable minds
cannot differ and can draw but one conclusion from the evidence, that is, when an issue should be
decided as a matter of law. Credit Bureau Servs. v. Experian Info. Solutions, 285 Neb. 526, 828
N.W.2d 147 (2013).
ANALYSIS
Exclusion of Medical Bills and Related Expert Testimony.
Putnam’s first two assignments of error are that the district court erred in excluding his
medical bills and in excluding Dr. Vinton’s opinion testimony that the bills were reasonable and
necessary. Although Putnam argues these assigned errors separately, we address them together.
Putnam argues that excluding his medical bills and Dr. Vinton’s opinion testimony based
on a discovery cut-off date nine months before trial was arbitrary and unjust. He maintains that the
bills and opinion testimony were disclosed more than two months before trial and that the defense
could not have been prejudiced by their admission at trial. Putnam further argues that he turned
over Dr. Vinton’s supplemental report, which contained the opinion as to reasonableness, pursuant
to his duty to supplement his discovery responses. Putnam describes the court’s exclusion of the
bills and opinion testimony as an “extreme sanction.” Brief for appellant at 16.
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The Scherbrings respond that because Putnam disclosed the medical bills and Dr. Vinton’s
opinion testimony several months after the close of discovery, the court did not abuse its discretion
when it excluded the evidence.
As an initial matter, we note that the record is not clear as to when defense counsel first
came into possession of Putnam’s medical bills. The record reflects that, at least with respect to
Dr. Godfrey, the chiropractor provided defense counsel with a list of all of the charges for Putnam’s
chiropractic treatments in response to a subpoena in June 2012. The record does not disclose
whether defense counsel subpoenaed medical bills from Putnam’s other medical providers.
However, it does disclose that on June 24, 2014, the defense’s retained expert, Bernard L.
Kratochvil, M.D., authored a report indicating that he had reviewed medical records from all of
Putnam’s medical providers. Dr. Kratochvil’s report also contained the following opinion: “Any
medical bills due after January 16, 2009 are not related to the accident.”
Given these documents, we know that defense counsel had Putnam’s medical records in
his possession prior to the close of discovery, and also had at least some of Putnam’s medical bills
prior to that time. However, we will assume for purposes of this appeal that Putnam’s medical bills
in their entirety were not turned over until after discovery closed. We do this in part because
Putnam states that the 147 pages of bills contained in exhibit No. 17 were given to defense counsel
“after the close of discovery” but still “several months to several weeks before trial.” Brief for
appellant at 12.
We now turn to the issue of whether the district court abused its discretion in excluding all
but a small fraction of Putnam’s medical bills, and in excluding Dr. Vinton’s opinion testimony
that the bills were reasonable and necessary.
On the morning of trial, when the district court took up the issue of whether Dr. Vinton
would be permitted to testify to his opinion that the bills were reasonable and necessary, there were
significant differences of opinion, as well as some confusion, as to how to resolve the issue. A
common theme throughout the discussion was the recognition that the issue of the reasonableness
of the bills was usually something parties resolved through a stipulation. The district court said
that this was “kind of a non-evidentiary issue” that was “just something you take up before trial.”
The court stated that, while no stipulation had been reached, it was not going to “force the issue.”
It then stated, “I don’t go there. I don’t think a court should.” Furthermore, while there was a
recognition that the parties had not entered into a stipulation, there was little focus on whether
admitting the bills, or Dr. Vinton’s testimony that the bills were reasonable and necessary, would
have unfairly surprised the defense.
Setting aside for a moment the propriety of the court’s reasoning, we construe the court’s
decision to exclude the medical bills and Dr. Vinton’s opinion testimony as a discovery sanction,
given that the impetus for the court’s decision was Putnam’s failure to disclose these items prior
to the close of discovery. Although Putnam identified Dr. Vinton as an expert witness as early as
May 31, 2012, he did not disclose Dr. Vinton’s March 30, 2015, opinion as to the reasonableness
of Putnam’s medical bills until between late March and late April 2015, more than six months after
discovery closed and two to three months before trial. (As noted previously, on appeal, defense
counsel acknowledged receiving Dr. Vinton’s supplemental report on March 30, which was three
months before trial.) Furthermore, it was not until Dr. Vinton’s offer of proof at trial that he
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testified to his opinion that Putnam’s medical expenses were necessary, although we note that the
same March 30 letter in which Dr. Vinton stated the medical charges were reasonable, he also
asserted that all of Putnam’s medical problems discussed in his report were not present prior to the
December 17, 2008, motor vehicle accident, and all were proximately related to that accident. Dr.
Vinton’s opinions as to these matters should have been disclosed in response to the Scherbrings’
interrogatory requesting expert witness disclosures pursuant to Neb. Ct. R. Disc.
§ 6-326(b)(4)(A)(i) (Reissue 2008). Likewise, Putnam should have turned over his medical bills
during discovery. While Putnam argues that he was simply supplementing his discovery responses
pursuant to § 6-326(e) when he disclosed Dr. Vinton’s supplemental report, we note that nothing
prevented Putnam from supplementing his expert witness disclosures prior to the close of
discovery.
We now return to the issue of the propriety of the court’s reasoning for excluding the
medical bills and Dr. Vinton’s opinion testimony as a discovery sanction. Although Putnam’s
failure to timely disclose these items during discovery cannot be condoned, we nevertheless have
determined that the district court abused its discretion in excluding them from evidence as a
discovery sanction. While the court clearly was aware of and took into consideration the fact that
Putnam had failed to timely comply with discovery, the court focused on the absence of a
stipulation regarding the medical bills, and stated that it would not “force the issue” or “go there.”
These comments suggest that the court did not appropriately exercise its discretion by weighing
all of the relevant factors for deciding whether to impose a discovery sanction. As we explain, the
relevant factors for determining whether to exclude testimony of an expert witness called by a
party who has failed to comply with a request for discovery are set forth in Norquay v. Union
Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146 (1987). The factors are similar to those relevant
to imposing any discovery sanction, as set forth in Hill v. Tevogt, 293 Neb. 429, 879 N.W.2d 369
(2016).
Because Dr. Vinton’s opinion testimony was necessary to provide foundation for
admission of Putnam’s medical bills, we first review the court’s decision to exclude Dr. Vinton’s
opinion testimony using the factors from Norquay v. Union Pacific Railroad, supra. In Norquay,
the Nebraska Supreme Court recognized that when a party fails to comply with a request for
discovery concerning an expert witness, preclusion of the expert witness’ testimony may be an
appropriate sanction pursuant to Neb. Ct. R. Disc. § 6-337(d) (rev. 2008). The court held that in
determining whether to exclude such testimony, the trial court should consider: (1) the explanation,
if any, for the party’s failure to respond, or respond properly, to a request for discovery concerning
an expert witness; (2) the importance of the expert witness’ testimony; (3) surprise to the party
seeking preclusion of the expert’s testimony; (4) needed time to prepare to meet the testimony
from the expert; and (5) the possibility of a continuance. Norquay v. Union Pacific Railroad, supra.
The first factor set forth in Norquay is the party’s explanation for the late disclosure. Again,
some of the delays occasioned by Putnam’s counsel are not to be condoned. However, at least
during much of 2014, when the close of discovery was looming, Putnam’s original counsel was
suffering from a heart condition and taking medication that “slowed [him] down both physically
and mentally,” causing him to become fatigued when walking as little as 100 yards. In November
2014, counsel underwent heart surgery, with an anticipated recovery time of three months.
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Counsel’s efforts prior to his surgery to retain counsel to assist with Putnam’s case were
unsuccessful, but following surgery he retained a new lead counsel. Unfortunately, Putnam’s new
counsel fractured his ankle on January 4, 2015, and required eight weeks of recovery. On February
18, 2015, finally having a healthy attorney, Putnam filed a motion to reopen discovery, seeking in
pertinent part to serve requests for admission on the defense as to whether Putnam’s medical
expenses were reasonable and necessary. This request was timely made given the medical
circumstances impacting both the initial and subsequent attorneys. The court denied this motion
on March 30, 2015, even though trial was scheduled for June 24--another three months down the
road. Thereafter, sometime between March 30 and late April, Putnam’s counsel provided defense
counsel with a supplemental report from Dr. Vinton containing, for the first time, an opinion that
Putnam’s medical expenses were reasonable. At a minimum, these circumstances suggest that the
late disclosure was not a willful or bad faith attempt to frustrate the discovery process or to employ
a strategy of “tactical surprise.” See Norquay v. Union Pacific Railroad, 225 Neb. at 536, 407
N.W.2d at 153. The dissent concludes that these circumstances do not excuse Putnam’s delay;
however, pertinent to our review is the fact that the district court failed to even consider this factor
before imposing its sanction. The serious medical condition plaguing Putnam’s original counsel
for much of 2014 (not just after the close of discovery) and its impact on counsel’s ability to give
the case sufficient attention before the discovery deadline is a factor that warranted consideration.
The second consideration is the importance of the evidence. This factor requires little
discussion, as the importance of Dr. Vinton’s testimony is readily apparent. Putnam was unable to
recover for any of his medical expenses without presenting evidence to establish that they were
reasonable and necessary. See McDonald v. Miller, 246 Neb. 144, 518 N.W.2d 80 (1994); Renne
v. Moser, 241 Neb. 623, 490 N.W.2d 193 (1992). Therefore, not being able to offer Dr. Vinton’s
testimony that Putnam’s medical bills were reasonable and necessary was detrimental to Putnam’s
case.
The third consideration is the surprise to the party seeking preclusion of the evidence.
Although we assume that defense counsel did not receive the entirety of Putnam’s medical bills
until sometime after the close of discovery, we do not believe that defense counsel could have been
surprised by the bills or by Dr. Vinton’s opinion that the bills were reasonable and necessary. By
at least August 28, 2014, prior to the close of discovery, defense counsel had records from all of
Putnam’s medical providers, as well as reports from four of Putnam’s then-designated experts, Dr.
Godfrey, Dr. Vinton, Dr. Ghosh, and Dr. Liebentritt. The reports briefly summarized each
provider’s treatment of Putnam’s injuries from the car accident. Dr. Vinton stated in his report that
Putnam continued to suffer headaches and neck and upper back pain and had undergone physical
therapy, received steroid injections, and been prescribed various medications. Dr. Vinton
specifically opined that Putnam’s headaches and neck and back pain were caused by the accident.
Dr. Ghosh’s report contained a similar opinion.
At a minimum, the information in defense counsel’s possession prior to the close of
discovery was sufficient to support a reasonable inference that the medical expenses for Putnam’s
treatments were a proximate result of the accident. See McDonald v. Miller, supra (evidence other
than medical provider’s expert testimony may be sufficient to satisfy requirement that medical
expenses be necessary). Indeed, it was the very information that defense counsel provided to his
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own expert witness to obtain an opinion as to whether Putnam’s expenses were necessary.
Although the defense’s expert, Dr. Kratochvil, issued a report on June 24, 2014, opining that “[a]ny
medical bills due after January 16, 2009, are not related to the accident,” the information in the
defense’s possession at that time also reasonably supported the opposite conclusion--that Putnam’s
medical expenses were a proximate result of the accident. Furthermore, the defense received Dr.
Vinton’s supplemental report, containing his opinion that Putnam’s medical bills were reasonable
and that Putnam’s problems were proximately related to the accident, between two and three
months before trial, and also received the entirety of Putnam’s medical bills around the same
period. Considering all of the circumstances, we do not believe the defense could have been
surprised had the court admitted Dr. Vinton’s opinion testimony at trial.
The dissent states that “we can assume the trial court found an element of surprise in Dr.
Vinton’s proposed testimony as to the bills from other health care providers.” However, Norquay
v. Union Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146 (1987), states that the trial court should
consider whether there has been surprise to the party seeking preclusion of the expert’s testimony;
the court in this instance failed to address the surprise factor at all. Instead, when discussing the
fact that the parties had not stipulated as to whether the medical bills were reasonable and
necessary, the court stated it would not “go there[,]” because that would mean “getting involved
in something that’s kind of a non-evidentiary issue[,]” and that is “something you take up before
trial.” There is no indication the court ever considered the element of surprise to the defense in
making its ruling to exclude Dr. Vinton’s testimony on this issue. And given the severity of the
sanction, an explanation by the trial court that it did consider this factor, rather than an assumption
on this court’s part, is favored.
The fourth consideration is the time needed to prepare to meet the evidence. Again, defense
counsel had between two and three months after receiving Dr. Vinton’s supplemental report before
trial was scheduled to begin. Defense counsel also had medical records from all of Putnam’s
providers, as well as at least some medical bills, prior to the close of discovery. Moreover, well
before the close of discovery, defense counsel had obtained an opinion from his own expert as to
the necessity of Putnam’s medical bills. Had Dr. Vinton’s opinion testimony been received into
evidence, defense counsel could have called his expert, Dr. Kratochvil, to dispute this evidence.
The fifth and final consideration is the possibility of a continuance. Given that defense
counsel had already retained an expert opinion that any bills after January 16, 2009, were not
related to the accident, a continuance likely was unnecessary.
In sum, applying the relevant factors from Norquay v. Union Pacific Railroad, supra, to
the circumstances of this case, we conclude that the district court abused its discretion by not
considering the Norquay factors at all, and in excluding from evidence, as a discovery sanction,
Dr. Vinton’s opinion testimony that Putnam’s medical bills were reasonable and necessary. We
see nothing in the record to support any kind of willful or bad faith attempt by Putnam’s counsel
to frustrate the discovery process or to employ a strategy of “tactical surprise.” See Norquay v.
Union Pacific Railroad, supra. Rather, Putnam’s original counsel had to contend with a serious
medical condition from early 2014 through his heart surgery in November 2014, and recovery
thereafter. In the midst of this, trial in this case was scheduled for July 2014. Defense counsel and
the court did accommodate continuances of trial to December 2014, then February 2015, and
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finally June 2015. The timeframe for the continuances are all close in time to counsel’s ongoing
treatment of his serious medical condition and surgery. This was not a situation where dilatory or
manipulative behavior caused delays in getting to trial; rather, this was an unfortunate and rare
circumstance for which consideration and discussion of the Norquay factors should have formed
the basis for the district court’s ultimate decision.
We now turn to the court’s decision to exclude Putnam’s medical bills as a discovery
sanction. Again, the factors set forth in Norquay for excluding expert testimony as a discovery
sanction are similar to the factors relevant to imposing any discovery sanction. When imposing a
discovery sanction, a court should consider: (1) the prejudice or unfair surprise suffered by the
party seeking sanctions, (2) the importance of the evidence which is the root of the misconduct,
(3) whether the court warned the sanctioned party about the consequences of its misconduct, (4)
whether the court considered less drastic sanctions, (5) the sanctioned party’s history of discovery
abuse, and (6) whether the sanctioned party acted willfully or in bad faith. Hill v. Tevogt, 293 Neb.
429, 879 N.W.2d 369 (2016).
Applying these factors to this case, we conclude that the district court abused its discretion
by not considering these factors and in excluding Putnam’s medical bills from evidence. We reach
this conclusion for many of the same reasons discussed above related to the exclusion of Dr.
Vinton’s opinion testimony, which reasons we need not repeat in detail here. In sum, the key
considerations under the factors from Hill v. Tevogt, supra, are that the defense would not have
been prejudiced or unfairly surprised had the medical bills been received into evidence; the medical
bills were critical to Putnam’s case; and there is nothing to indicate that Putnam or his attorneys
acted willfully or in bad faith in making their late discovery disclosures. Although Putnam’s
counsel’s delays in discovery cannot be condoned, such conduct did not warrant the drastic
sanction of excluding all but a small fraction of Putnam’s medical bills. As previously discussed,
counsel’s delays were in large part a result of serious medical issues and, given the importance of
the evidence and the lack of unfair surprise to the defense, such a harsh sanction was not warranted.
We note that the Scherbrings argue that we could affirm the court’s decision to exclude the
medical bills based on hearsay. However, we decline to do so. The district court excluded the
medical bills as a discovery sanction and did not otherwise address the admissibility of the bills.
Although we reverse the court’s decision to exclude the medical bills and Dr. Vinton’s opinion
testimony as a discovery sanction, on remand the Scherbrings are free to object to the admission
of these items on any other evidentiary basis.
Exclusion of Briggs’ Testimony.
Putnam also assigns as error that the district court erred in excluding Briggs’ testimony.
Again, Briggs was a former coworker of Putnam’s who was not disclosed as a witness prior to the
close of discovery. During an offer of proof, Briggs testified to changes she observed in Putnam
following the accident, including that he appeared to be in pain, had trouble turning his head, and
was short-tempered. The Scherbrings acknowledge that Putnam first disclosed Briggs as a witness
on March 30, 2015.
The district court excluded Briggs’ testimony as part of its decision to grant the
Scherbrings’ motion in limine to exclude any testimony or evidence disclosed after the close of
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discovery on September 15, 2014. Similar to the decision to exclude Dr. Vinton’s opinion
testimony and Putnam’s medical bills, this was a discovery sanction pursuant to § 6-337(d). The
relevant factors for imposing a discovery sanction are those set forth above from Hill v. Tevogt,
supra.
Based on the record before us, we cannot say that the court abused its discretion in
excluding Briggs’ testimony. While Putnam’s medical bills and Dr. Vinton’s opinion testimony
were critical to Putnam’s case, the same cannot be said about Briggs’ testimony. Briggs’ testimony
merely would have corroborated Putnam’s own testimony, as well as testimony from Putnam’s
medical providers. Given the cumulative nature of Briggs’ testimony and her untimely disclosure
as a witness, we find no abuse of discretion in excluding her testimony.
Denial of Motion for Directed Verdict.
Putnam’s final assignment of error is that the court erred in denying his motion for a
directed verdict on the issue of “liability,” including “proximate cause.” He argues that there was
“no issue as to [the Scherbrings’] liability” and that “all of the uncontroverted medical testimony
showed that [he] had sustained some injury as a result of the accident.” Brief for appellant at 31.
He contends that the only issue for the jury should have been the nature and extent of his injuries.
“An admission of liability for an accident does not constitute an admission that all damages
claimed by the plaintiff, even though undisputed in the record, were the proximate result of the
accident.” Cooper v. Hastert, 175 Neb. 836, 838, 124 N.W.2d 387, 388 (1963). Even when a trial
is conducted “on the issue of damages only,” the plaintiff has the burden of proving that his or her
damages were proximately caused by the accident. Steele v. Sedlacek, 267 Neb. 1, 3, 673 N.W.2d
1, 6 (2003). As the district court in this case correctly reasoned when denying Putnam’s motion
for directed verdict, it was “a jury question and a credibility issue” whether “the accident was the
proximate cause of any damages.” The evidence on this issue was not undisputed and did not
support only one conclusion, especially given Putnam’s inability to present evidence of his medical
bills. Therefore, we affirm the court’s denial of the motion for directed verdict.
CONCLUSION
For the foregoing reasons, we conclude that the district court abused its discretion in
excluding, as a discovery sanction, Putnam’s medical bills and Dr. Vinton’s opinion testimony that
the bills were reasonable and necessary, and therefore we reverse the judgment in favor of the
Scherbrings and remand for a new trial. However, we affirm the court’s decisions excluding
Briggs’ testimony and denying Putnam’s motion for a directed verdict.
AFFIRMED IN PART, AND IN PART REVERSED
AND REMANDED FOR A NEW TRIAL.
RIEDMANN, Judge, dissenting.
Considering our standard of review, the multiple requests for discovery extensions, and the
number of years this case languished in the court system, I respectfully dissent from the majority’s
opinion that the trial court abused its discretion in granting the Scherbrings’ motion in limine to
exclude evidence that was not timely disclosed.
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The majority correctly states that the determination of an appropriate discovery sanction
rests within the discretion of the trial court and an appellate court will not disturb it absent an abuse
of discretion. Hill v. Tevogt, 293 Neb. 429, 879 N.W.2d 369 (2016). For an abuse of discretion to
exist, the ruling of the trial judge must be clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results. Id. Giving meaning to the words clearly untenable and
unfairly depriving, I cannot find an abuse of discretion because of the repeated failure to timely
disclose the expert opinion at issue despite accommodations by both opposing counsel and the
court.
The accident giving rise to this case occurred in December 2008; the lawsuit was filed in
April 2012. After the case had been reinstated following a dismissal for lack of prosecution, the
court entered a scheduling order proposed by the parties which included an expert disclosure
deadline for Putnam of April 14, 2014; a final expert discovery deadline of September 15, 2014;
and a trial date of December 17, 2014. At Putnam’s request, trial was continued two more times,
with an ultimate trial date of June 24, 2015.
During the course of discovery, both opposing counsel and the court worked with Putnam’s
original counsel to extend discovery deadlines. When Putnam’s attorney experienced a medical
condition in November 2014 that necessitated hiring new lead counsel, trial was continued from
December 17, 2014 to February 18, 2015. When new counsel fractured his ankle, trial was again
continued to June 24, 2015.
After new lead counsel was hired in January 2015, he recognized some deficiencies in the
discovery that had been completed and sought to reopen discovery. At a hearing on Putnam’s
motion to reopen discovery held on March 30 (6 months after discovery was closed), Putnam
requested permission to add three new medical experts. At the hearing, Putnam revealed for the
first time that a previously disclosed expert, Dr. Thomas Vinton, would opine that Putnam suffered
from a brain injury as a result of the 2008 accident. The trial court denied the motion to reopen
discovery.
Sometime subsequent to the hearing, Scherbrings received a supplemental report from Dr.
Vinton dated March 30, 2015. In this supplemental report, Dr. Vinton opined for the first time that
Putnam’s medical bills, including those from other health care providers, were fair and reasonable.
It is uncertain from the record when that report was furnished to the Scherbrings.
These supplemental opinions served as the impetus of Scherbrings’ motion in limine that
is the subject of this appeal. The Scherbrings filed their motion on June 5, 2015 and sought to
exclude evidence relating to medical opinions not timely disclosed. Among other evidence, the
Scherbrings sought to exclude opinions from Dr. Vinton that were not disclosed in his August
2013 report or during his deposition of August 2014. Our record does not contain a transcription
of the hearing on the motion in limine, but based upon comments made during trial, it is evident
that the court sustained portions of the motion in limine, including the exclusion of any expert
opinion disclosed after the September 15, 2014 discovery deadline.
The morning of trial, the Scherbrings’ attorney asked the court to clarify the scope of the
court’s ruling on the motion in limine. Specifically he sought a ruling that Dr. Vinton would not
be allowed to testify that the medical bills were fair and reasonable. The court noted the peculiarity
of the situation, pointing out that typically the parties stipulate before trial that the medical bills
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are fair and reasonable. Because there was no such stipulation, and at the insistence of Scherbrings’
counsel that there was no prior disclosed expert opinion on the issue, the court ruled that Dr. Vinton
would be allowed to testify only as to his own bills up through the date of his deposition, but would
not be allowed to opine on the remainder of the bills. The basis for the exception for Dr. Vinton’s
pre-deposition bills was the absence of “surprise or unfairness” as to such testimony.
Consistent with the court’s pretrial rulings, the court sustained a trial objection to Dr.
Vinton’s testimony and the offer of Putnam’s medical bills. Because Putnam’s attorney chose not
to offer Dr. Vinton’s pre-deposition bills into evidence, the jury was not instructed on damages
related to medical expenses and returned a verdict in favor of the Scherbrings.
On appeal and pertinent to this dissent, Putnam assigned as error the exclusion of both the
medical bills and Dr. Vinton’s opinion as to their fairness and reasonableness. He does not assign
error to the denial of his motion to reopen discovery. Therefore, the question on appeal is whether
the district court erred in excluding this evidence that was not timely disclosed.
The majority questions the “propriety of the court’s reasoning” when referring to the
colloquy that occurred before trial during which the court commented that the issue of the fairness
and reasonableness of medical bills is usually something the parties resolve through a stipulation
prior to trial. I read this portion of the record as simply the court’s observation that parties typically
stipulate to this issue before trial and do not seek an evidentiary ruling. Because the parties in this
case did not so stipulate and Scherbrings’ counsel sought a ruling, the fairness and reasonableness
of the bills was the subject of expert testimony, which Putnam failed to timely disclose.
The majority concedes that Putnam did not disclose Dr. Vinton’s opinion as to the fairness
and reasonableness of the bills until more than 6 months after discovery closed and that he did not
disclose the opinion that the bills were necessary until his offer of proof at trial. The majority also
admits that these opinions “should have been disclosed in response to the Scherbrings’
interrogatory requesting expert witness disclosures pursuant to Neb. Ct. R. Disc.
§ 6-326(b)(4)(A)(i) (Reissue 2008).” Relying upon the factors enunciated in Norquay v. Union
Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146 (1987), however, the majority determines the
court abused its discretion in excluding the evidence. Relying upon these same factors and mindful
of the court’s discretion, I disagree.
When imposing discovery sanctions, the factors the trial court should consider are: (1) the
explanation, if any, for the party’s failure to respond, or respond properly, to a request for discovery
concerning an expert witness; (2) the importance of the expert witness’ testimony; (3) surprise to
the party seeking preclusion of the expert’s testimony; (4) needed time to prepare to meet the
testimony from the expert; and (5) the possibility of a continuance. Norquay v. Union Pacific
Railroad, supra.
Turning to the first consideration, the party’s explanation for failure to respond, Putnam
provided no reason. Even the majority admits Putnam should have provided this information in
response to Scherbrings’ interrogatories which were served in May 2012. The majority relies upon
the medical issues that both initial and substitute counsel experienced as a basis to excuse the
delay; however, Putnam’s initial counsel filed an affidavit on November 21, 2014 (two months
after the discovery deadline) in which he states that he met with his cardiologist “during October
2014” because of irregular heartbeats he was experiencing. He does not state that these irregular
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heartbeats affected his ability to work. In a later affidavit offered at a January 15, 2015 hearing, he
states “[d]uring the early part of 2014” he sought medical attention for a “rapid heartbeat” and was
subsequently prescribed a medication that slowed him down both physically and mentally. He does
not identify in that affidavit the date on which the medication was prescribed, but even assuming
it was in early 2014, the interrogatories were served over a year and a half prior. Putnam’s
replacement counsel fractured his ankle in January 2015, four months after the discovery deadline,
at which time he became incapacitated. The case was filed in April 2012. Dr. Vinton was identified
as an expert as early as May 31, 2012, but no opinion as to the fairness and reasonableness of the
medical bills was offered during the nearly two years between his disclosure and initial trial
counsel’s first medical incident. Therefore, under the first factor, Putnam’s delay is not excused.
The majority concludes that “[t]he serious medical condition plaguing Putnam’s original
counsel for much of 2014 (not just after the close of discovery) and its impact on counsel’s ability
to give the case sufficient attention before the discovery deadline is a factor that warranted
consideration.” However, initial counsel admits in his January 2015 affidavit that it was not until
mid-October 2014 that he became “substantially incapacitated.” And I take issue with the
majority’s inference that the trial court did not take the attorneys’ medical conditions into
consideration. In an exchange with Putnam’s trial counsel, the court acknowledged the medical
issues Putnam’s attorneys experienced, explaining its ruling by stating:
So I know that it’s a hard issue for you to accept, and I understand that, but it’s just the
entire history. I really tried to balance things here, and I’m sensitive to the health issues of
[initial counsel] and then the one that you had, unfortunately, but - but they had already
taken the time and expense to take the doctor’s deposition and prepare, and so it had
reached that point.
The trial court was in the best position to determine whether Putnam’s late disclosure was
excusable and found that it was not; I agree.
The second consideration is the importance of the evidence. I agree with the majority that
the importance of Dr. Vinton’s testimony is readily apparent, and therefore all the more reason to
exclude it for being untimely. See Paulk v. Central Lab. Assocs., 262 Neb. 838 636 N.W.2d 170
(2001) (finding error in denying motion for mistrial for untimely disclosure of evidence stating
“[t]he critical importance of the evidence intensified the unfairness occasioned by the failure to
disclose it during discovery”).
As to the third consideration, surprise to the party seeking preclusion of the evidence, I
believe the focus is not on whether Scherbrings were surprised by the bills, but rather whether they
should have expected Dr. Vinton to testify as to their fairness, reasonableness, and necessity when
he was not the physician rendering the treatment. While a treating physician may testify to the
necessity of another health care provider’s medical bills to whom his patient was referred (see
Gittins v. Scholl, 258 Neb. 18, 601 N.W.2d 765 (1999)), I differ with the majority’s statement that
“we do not believe that defense counsel could have been surprised by the bills or by Dr. Vinton’s
opinion that the bills were reasonable and necessary.” The lack of surprise as to Dr. Vinton’s
opinion as to his own bills was the court’s basis in allowing that limited opinion. It rejected
Scherbrings’ request to exclude that testimony stating “I don’t see the -- if you will, the surprise
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or unfairness to allowing Dr. Vinton to testify about the fairness and reasonableness and necessity
of his bills as of the date you took his deposition.” Therefore, we can assume the trial court found
an element of surprise in Dr. Vinton’s proposed testimony as to the bills from other health care
providers. The fact that Putnam disclosed this proposed opinion two to three months before trial
should not negate its untimely disclosure.
The fourth consideration is the time needed to prepare to meet the evidence. The
Scherbrings had retained their own medical expert to testify that treatment after January 16, 2009
was not related to the accident; however, the record does not contain evidence that this expert
could address whether the bills were fair or reasonable.
The final consideration is the possibility of a continuance. In light of the fact that trial had
already been continued multiple times and that the case had been on file for more than three years,
case progression standards promulgated by the Nebraska Supreme Court weighed against another
continuance. Neb. Ct. R. 6-101 (setting 90 percent of district court jury trial to be disposed of
within one year). The trial court explained its position, stating:
There have been four continuances I think all at the request of the plaintiff. So I think - and
this is probably the oldest case I have. And so it reached I think the point after four resetting
of trial dates, and that - I’m very comfortable with that and the combination - and I think,
frankly, defendants’ counsel was accommodating the plaintiff’s counsel throughout the
years on this issue of his health, but we have - we did finally reach a point.
It is clear to me that the court thoughtfully considered its ruling. The bill of exceptions
contains 21 pages of discussion on the issue that occurred the morning of trial and at least another
12 pages that occurred during trial, not to mention whatever discussion occurred at the actual
hearing on the motion in limine, a transcription of which is not included in our record. An
appropriate sanction under Rule 37 is determined in the factual context of a particular case and is
initially left to the sound 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. Norquay v. Union Pacific
Railroad, supra. Given the factual context of this case in that Scherbrings initially requested expert
opinions in May 2012, Putnam was prompted several times by opposing counsel and granted
discovery extensions by the court, and still did not disclose the opinion at issue until late March or
early April 2015, I find no abuse of discretion in the granting of Scherbrings’ motion in limine
excluding Dr. Vinton’s opinion. Without expert testimony regarding medical expenses, the bills
themselves were inadmissible.
Additionally, I would note that a district court’s inherit powers also include the broad
discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly
trial. Schindler v. Walker, 7 Neb. Ct. App. 300, 582 N.W.2d 369 (1998). And even when a trial court’s
exclusion of evidence may not be sustained as a Rule 37 sanction, it may be sustained as an
exercise of a court’s inherent powers. Id. “When rules alone do not provide courts with sufficient
authority to protect their integrity and prevent abuses of the judicial process, the inherent power
fills the gap.” Id. at 311, 582 N.W.2d at 377. I am reluctant to find an abuse of discretion when a
trial court has provided every opportunity for a party to comply with the discovery rules by
granting discovery extensions and trial continuances. I would therefore affirm.
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