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


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