Putnam v. Scherbring , 297 Neb. 868 ( 2017 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    10/20/2017 01:11 AM CDT
    - 868 -
    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    PUTNAM v. SCHERBRING
    Cite as 
    297 Neb. 868
    M ark A. Putnam, appellant, v.
    K eri G. Scherbring et al., appellees.
    ___ N.W.2d ___
    Filed September 29, 2017.   No. S-15-610.
    1.	 Evidence: Appeal and Error. Generally, the control of discovery is a
    matter for judicial discretion, and decisions regarding discovery will be
    upheld on appeal in the absence of an abuse of discretion.
    2.	 Appeal and Error. Appellate review of a district court’s use of inherent
    power is for an abuse of discretion.
    3.	 Judgments: Words and Phrases. An abuse of discretion occurs when a
    trial court’s decision is based upon reasons that are untenable or unrea-
    sonable or if its action is clearly against justice or conscience, reason,
    and evidence.
    4.	 Rules of the Supreme Court: Trial: Time. Under case progression
    standards adopted by the Nebraska Supreme Court, civil jury cases are
    to be disposed of within 1 year to 18 months of filing, absent extraordi-
    nary circumstances.
    5.	 Rules of the Supreme Court: Judges: Motions for Continuance. Trial
    judges are encouraged to implement firm, consistent procedures for
    minimizing continuances to meet the case progression standards of the
    Nebraska Supreme Court.
    6.	 Rules of the Supreme Court: Attorneys at Law: Courts. Each mem-
    ber of the bar shall cooperate with the judiciary in meeting the case
    progression standards of the Nebraska Supreme Court.
    7.	 Courts. Nebraska courts, through their inherent judicial power, have
    the authority to do all things necessary for the proper administration
    of justice.
    8.	 Trial: Courts. A trial court has broad discretion to make discovery and
    evidentiary rulings conducive to the conduct of a fair and orderly trial.
    Petition for further review from the Court of Appeals,
    Inbody, R iedmann, and Bishop, Judges, on appeal thereto from
    - 869 -
    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    PUTNAM v. SCHERBRING
    Cite as 
    297 Neb. 868
    the District Court for Douglas County, Thomas A. Otepka,
    Judge. Judgment of Court of Appeals reversed, and cause
    remanded with directions.
    Herbert J. Friedman, of Friedman Law Offices, P.C., L.L.O.,
    and Paul 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.
    Cathy S. Trent-Vilim, of Lamson, Dugan & Murray, L.L.P.,
    for amicus curiae Nebraska Defense Counsel Association.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Cassel, J.
    I. INTRODUCTION
    In order to enforce progression orders in an automobile
    negligence case, the district court excluded untimely disclosed
    expert opinions regarding medical bills. Relying upon our
    decision regarding a discovery sanction,1 a divided panel of
    the Nebraska Court of Appeals decided that the district court
    had abused its discretion.2 We granted further review and
    now reverse.
    II. BACKGROUND
    The district court excluded untimely disclosed expert opin-
    ion testimony which was necessary to lay the foundation
    for past medical bills presented as damages. The chronology
    of the case is particularly important, as it drove the district
    court’s decision.
    1
    Norquay v. Union Pacific Railroad, 
    225 Neb. 527
    , 
    407 N.W.2d 146
          (1987).
    2
    Putnam v. Scherbring, No. A-15-610, 
    2017 WL 163796
    (Neb. App. Jan.
    17, 2017) (selected for posting to court website).
    - 870 -
    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    PUTNAM v. SCHERBRING
    Cite as 
    297 Neb. 868
    1. Cause of Action and Pleadings
    In December 2008, Mark A. Putnam’s motor vehicle col-
    lided with the motor vehicle driven by Keri G. Scherbring
    but owned by her parents, Dale J. Scherbring and Janet K.
    Scherbring.
    In April 2012, approximately 40 months after his cause
    of action arose, Putnam filed suit against the Scherbrings
    alleging that he sustained injuries and damages as a result
    of Keri’s negligent driving. He sought general and special
    damages, including resulting medical expenses incurred since
    the collision.
    The Scherbrings admitted that Keri’s negligence proximately
    caused the accident but denied that it proximately caused
    injury to Putnam. Thus, Putnam had to prove the extent of his
    resulting damages and that such damages were proximately
    caused by the accident.
    2. Case Progression
    (a) Dismissed for Lack
    of Prosecution
    On August 28, 2013, the district court sent notice to the
    parties’ counsel that unless further action was taken, the case
    would be dismissed for lack of prosecution pursuant to the
    Rules of Dist. Ct. of Fourth Jud. Dist. 4-10 (rev. 2010). The
    parties did not follow the procedure or take any action to
    avoid dismissal.
    On October 1, 2013, the district court dismissed Putnam’s
    action for lack of prosecution. Upon Putnam’s motion to rein-
    state, the district court vacated the order of dismissal and rein-
    stated the case.
    (b) Initial Scheduling Order
    On October 16, 2013, the court entered the first scheduling
    order in this case. The order adopted the parties’ stipulated pro-
    posed order and set forth the following deadlines:
    - 871 -
    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    PUTNAM v. SCHERBRING
    Cite as 
    297 Neb. 868
    • January 15, 2014—Putnam’s deadline to designate expert
    witnesses;
    • March 31, 2014—deadline to complete fact discovery; and
    • May 15, 2014—ready for trial date.
    Trial was set for July 23, 2014.
    (c) New Scheduling Order
    Putnam apparently missed the deadline to designate his
    experts and belatedly supplied incomplete disclosures. When
    it became clear that the remaining deadlines could not be met
    after this delay, Putnam moved for a new scheduling order.
    The parties then stipulated to a new scheduling order. The
    new scheduling order set September 15, 2014, as the deadline
    for all expert disclosures and discovery, and to be prepared
    for trial.
    The trial was continued to December 17, 2014. As a result
    of this continuance, the scheduled trial date was over a year
    after the district court’s standard for disposition of 98 percent
    of its civil jury cases.3
    (d) Putnam’s First
    Motion to Continue
    On November 21, 2014, 26 days before trial was sched-
    uled to begin and 10 weeks after the deadline to be prepared
    for trial, Putnam moved to continue the trial. The affidavit
    accompanying the motion stated that Putnam’s counsel had
    been hospitalized after a scheduled heart surgery and “ha[d]
    not been able to prepare for trial.” It appears that the district
    court was not aware of counsel’s health situation until the
    motion was filed.
    The trial was continued to February 18, 2015. The new trial
    date would have been 16 months after the standard for disposi-
    tion of 98 percent of its civil jury cases.4
    3
    See Neb. Ct. R. § 6-101(A) (rev. 2013).
    4
    
    Id. - 872
    -
    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    PUTNAM v. SCHERBRING
    Cite as 
    297 Neb. 868
    (e) Putnam’s Second
    Motion to Continue
    On January 9, 2015, 40 days before the scheduled trial,
    Putnam filed a second motion to continue. In this motion, his
    original counsel recited several continuing health concerns
    that required addition of new lead counsel. However, the new
    lead counsel had sustained an injury and could not be ready
    for trial as scheduled.
    A hearing was held, and Putnam’s counsel offered an affi-
    davit in support of the motion. In it he explained, for the first
    time, that he had health problems for the duration of 2014 and
    “was not able to properly prepare for trial.” Putnam’s new lead
    counsel also offered an affidavit explaining “it appears that
    most likely [Putnam] will need to conduct limited additional
    discovery and the witness and exhibit list may need to be
    edited relative to medical issues.”
    The court sustained the motion, without mentioning in its
    order the oblique request for additional discovery, and con-
    tinued the trial to June 24, 2015. The new trial date was 11
    months after the original trial date and over 20 months after
    the court’s standard for disposition of 98 percent of its civil
    jury cases.5
    (f) Motions to Reopen Discovery
    On February 18, 2015, Putnam’s new counsel filed a motion
    to reopen discovery for the purpose of serving requests for
    admission regarding the fairness, reasonableness, and neces-
    sity of Putnam’s medical expenses. He also filed a supple-
    mental motion on March 26 to add four additional expert
    witnesses and for additional limited discovery. These requests
    were nearly 3 years after Putnam filed suit, 1 year after his
    extended expert opinion disclosure deadline, and approxi-
    mately 8 months after the original trial date.
    5
    
    Id. - 873
    -
    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    PUTNAM v. SCHERBRING
    Cite as 
    297 Neb. 868
    After a hearing, the district court overruled these motions.
    In reaching its decision, the court noted that the case was 18
    months past the case progression standards target disposi-
    tion date, that the pending trial date was the fourth date set,
    that the trial had been continued three times to accommodate
    Putnam, and that the Scherbrings had been able to timely iden-
    tify their experts.
    (g) Amended Motion in Limine
    Because the parties did not stipulate before trial to the fair-
    ness and reasonableness of the medical bills, Putnam needed
    to present expert testimony to lay this foundation.6 But Putnam
    failed to timely disclose such an expert opinion.
    To remedy this situation, Putnam acquired a supplemental
    report from one of his doctors who had been previously identi-
    fied as an expert witness. The report, dated March 30, 2015,
    apparently disclosed a new expert opinion that Putnam had
    suffered a traumatic brain injury. It also reported that the medi-
    cal bills incurred from treatment by the expert witness, as well
    as the bills from several other treating physicians, were fair,
    reasonable, and necessary.
    Though the report was dated March 30, 2015, it was not
    disclosed to the Scherbrings until June 2—22 days before
    trial. And because discovery was closed, the Scherbrings were
    unable to follow up on the new opinions or depose the expert
    witness again before trial. Moreover, the disclosure introduced
    new material that would significantly change the nature of
    Putnam’s claimed injuries.
    6
    See, generally, Connelly v. City of Omaha, 
    284 Neb. 131
    , 146, 
    816 N.W.2d 742
    , 756 (2012) (“[a] person who suffers injury as a result of
    the negligence of another ‘is entitled to recover for the reasonable value
    of medical care and expenses incurred for the treatment of injuries’”)
    (emphasis supplied) (citing Steinauer v. Sarpy County, 
    217 Neb. 830
    ,
    
    353 N.W.2d 715
    (1984)); Oliverius v. Wicks, 
    107 Neb. 821
    , 
    187 N.W. 73
          (1922) (no recovery for medical and hospital expenses where no evidence
    of reasonable value thereof).
    - 874 -
    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    PUTNAM v. SCHERBRING
    Cite as 
    297 Neb. 868
    Following this disclosure, the Scherbrings filed an amended
    motion in limine to exclude evidence that was not disclosed
    during discovery, including expert reports and opinions con-
    cerning medical bills, as well as medical bills not disclosed
    during discovery. The record does not include the hearing on
    the amended motion in limine, or a written order disposing of
    the motion, but it is clear from the court’s trial docket entry
    and the bill of exceptions that the relevant parts of the motion
    were sustained.
    3. Trial
    The scope of the sustained amended motion in limine was
    addressed on the first day of trial, outside the presence of the
    jury. At this time, the court acknowledged the strangeness of
    the situation by noting parties typically stipulate to fairness and
    reasonableness of medical bills and then the plaintiff offers evi-
    dence to prove necessity. However, the court noted that even
    in the absence of a stipulation, it “[did]n’t see the prejudice
    in terms of some unfair surprise to the defendant to allow [the
    previously disclosed expert] to testify about the reasonableness
    and necessity for [the expert’s] bills up to the date of the depo-
    sition.” Therefore, the court ruled that the expert could testify
    to the reasonableness and necessity of those bills. It further
    clarified that any testimony as to the fairness and reasonable-
    ness of all other medical bills was to be excluded.
    As a result, Putnam was not permitted to introduce the vast
    majority of his medical bills at trial. For strategic purposes,
    Putnam decided not to offer the previously disclosed expert’s
    bills in light of the exclusion of the others. However, Putnam
    testified to the extent of his injuries after the accident and
    the treatment he received. Other previously disclosed medical
    providers were also allowed to testify to the treatment they
    provided Putnam for his injuries.
    On this evidence, the jury returned a verdict in favor of the
    Scherbrings. The district court entered a judgment on the jury
    verdict, and Putnam timely appealed.
    - 875 -
    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    PUTNAM v. SCHERBRING
    Cite as 
    297 Neb. 868
    4. Court of A ppeals’ Decision
    On appeal, the Court of Appeals, in a split decision, relied
    on our decision in Norquay v. Union Pacific Railroad 7 to con-
    clude that “the district court abused its discretion in exclud-
    ing, 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.”8 In reaching this
    decision, the majority opinion emphasized that “the district
    court abused its discretion by not considering the Norquay
    factors at all.”9 Finding error, the court reversed the judgment
    and remanded the matter to the district court for a new trial.
    The Court of Appeals rejected Putnam’s other assignments
    of error.
    We granted the Scherbrings’ petition for further review.
    III. ASSIGNMENT OF ERROR
    The Scherbrings assign that the Court of Appeals erred in
    finding that the district court abused its discretion when it
    excluded evidence and expert opinion testimony which were
    disclosed months after the discovery deadline and after the
    court had previously continued the trial three times. Putnam
    did not seek further review of the Court of Appeals’ rejection
    of his other assignments of error.
    IV. STANDARD OF REVIEW
    [1-3] 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.10
    Similarly, appellate review of a district court’s use of inherent
    power is for an abuse of discretion.11 An abuse of discretion
    7
    Norquay v. Union Pacific Railroad, supra note 1.
    8
    Putnam v. Scherbring, supra note 2, 
    2017 WL 163796
    at *1.
    9
    
    Id. at *10.
    10
    Roskop Dairy v. GEA Farm Tech., 
    292 Neb. 148
    , 
    871 N.W.2d 776
    (2015).
    
    11 Tyl. v
    . Heywood, 
    258 Neb. 901
    , 
    607 N.W.2d 186
    (2000).
    - 876 -
    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    PUTNAM v. SCHERBRING
    Cite as 
    297 Neb. 868
    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.12
    V. ANALYSIS
    The Scherbrings and amicus curiae assert that the Court
    of Appeals applied the wrong analysis and erred in finding
    an abuse of discretion. They argue that the district court was
    enforcing its previous orders (which had extended discovery
    deadlines and continued trial dates) when it excluded the evi-
    dence in question. And, they maintain that the court did not
    need to apply the factors set forth in Norquay v. Union Pacific
    Railroad 13 to exercise this power. For the reasons set forth
    below, we agree.
    1. A pplicability of
    Norquay Factors
    Our analysis in Norquay v. Union Pacific Railroad was
    directed to a trial court’s authority to preclude testimony as
    a discovery sanction. In that case, a party failed to comply
    with a request for discovery and additionally failed to sea-
    sonally supplement its answer to an interrogatory. There was
    no progression order, and the trial court did not find that the
    testimony in question was untimely disclosed. Therefore, the
    court’s authority to preclude testimony was premised solely
    upon its power to issue a sanction under rule 37 of the
    Nebraska Court Rules of Discovery (now codified as Neb.
    Ct. R. Disc. § 6-337). To ensure a balanced approach to pun-
    ish those whose conduct warrants a § 6-337 sanction and to
    deter those who may be inclined or tempted to frustrate the
    discovery process, we outlined several factors a court should
    consider before imposing a sanction.
    12
    State v. Chauncey, 
    295 Neb. 453
    , 
    890 N.W.2d 453
    (2017).
    13
    Norquay v. Union Pacific Railroad, supra note 1.
    - 877 -
    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    PUTNAM v. SCHERBRING
    Cite as 
    297 Neb. 868
    In light of our summary of the tortured progression of
    the case before us, it is clear that Norquay v. Union Pacific
    Railroad does not apply. Indeed, at oral argument, Putnam
    acknowledged the difficulty of arguing otherwise. Here, the
    parties stipulated to a proposed progression order with a dis-
    covery deadline and the district court adopted and entered the
    progression order. The court was initially flexible and amended
    the order and continued trial three times to accommodate
    Putnam. But, it ultimately elected to enforce its progression
    order when, shortly before trial, Putnam attempted to disclose
    new expert opinions and evidence which would undoubtedly
    cause further delay. This was fundamentally different from
    imposing a sanction for a party’s attempt to abuse the discov-
    ery process.
    [4-6] Under case progression standards adopted by this
    Court, civil jury cases are to be disposed of within 1 year to
    18 months of filing, absent extraordinary circumstances.14 Trial
    judges are encouraged to implement firm, consistent proce-
    dures for minimizing continuances to meet these standards.15
    And our standards make it clear that the responsibility for
    compliance does not rest solely on the judiciary. “Each mem-
    ber of the bar shall cooperate with the judiciary in meeting
    these standards.”16
    [7] Nebraska courts, through their inherent judicial power,
    have the authority to do all things necessary for the proper
    administration of justice.17 It is apparent that the district court
    relied on this authority and not its authority under § 6-337 to
    issue a discovery sanction. Therefore, the correct analytical
    framework did not require the district court to consider the
    Norquay factors.
    14
    See § 6-101(A).
    15
    See § 6-101(B)(5).
    16
    § 6-101(C).
    17
    See In re Interest of Zachary D. & Alexander D., 
    289 Neb. 763
    , 
    857 N.W.2d 323
    (2015).
    - 878 -
    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    PUTNAM v. SCHERBRING
    Cite as 
    297 Neb. 868
    2. A buse of Discretion
    Having concluded that the district court was not required to
    consider the Norquay factors, we review its exercise of inher-
    ent power for an abuse of discretion.18 We are not unsympa-
    thetic to the serious illness of Putnam’s original lead counsel
    and the unfortunate injury to his successor lead counsel. And it
    is clear that the district court, through repeated extensions and
    continuances, gave these matters due consideration. Moreover,
    the Scherbrings repeatedly agreed to (if not initiated) delays
    and accommodations to opposing counsel.
    [8] We have explained that a court abuses its discretion
    when its decision is based upon reasons that are untenable
    or unreasonable or if its action is clearly against justice or
    conscience, reason, and evidence.19 This is a fairly deferential
    standard. Moreover, a trial court has broad discretion to make
    discovery and evidentiary rulings conducive to the conduct of
    a fair and orderly trial.20 Given this standard of review and the
    breadth of the trial court’s discretion, we are unable to find an
    abuse of that discretion.
    There is no evidence that the court based its decision to
    exclude untimely evidence for any reasons that were untenable
    or unreasonable. In fact, the record reflects that the court care-
    fully considered its decision and sought to achieve a balanced
    outcome for both parties. For the same reasons, we cannot find
    that the court’s action was clearly against justice or conscience,
    reason, and evidence. As the trial judge said, “proposed sched-
    uling orders have to mean something.” Accordingly, we con-
    clude that the district court did not abuse its discretion in
    excluding the untimely disclosed expert opinion.
    The admissibility of the medical bills was dependent upon
    the admissibility of the expert opinion that they were fair,
    18
    See Tyler v. Heywood, supra note 11.
    19
    See State v. Chauncey, supra note 12.
    20
    See State v. Pangborn, 
    286 Neb. 363
    , 
    836 N.W.2d 790
    (2013).
    - 879 -
    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    PUTNAM v. SCHERBRING
    Cite as 
    297 Neb. 868
    reasonable, and necessary.21 Therefore, it necessarily follows
    that the district court did not abuse its discretion in excluding
    the majority of medical bills for this lack of foundation.
    VI. CONCLUSION
    Because the district court exercised its inherent authority to
    enforce its progression order, we conclude that the analysis set
    forth in Norquay v. Union Pacific Railroad did not apply. We
    also conclude that it was not an abuse of discretion to exclude
    evidence disclosed over 1 year after the discovery deadline
    imposed by the court’s progression order. Accordingly, we
    reverse the decision of the Court of Appeals and remand the
    cause to the Court of Appeals with directions to affirm the
    district court’s judgment.
    R eversed and remanded with directions.
    21
    See cases cited supra note 6 and accompanying text.