Putnam v. Scherbring

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/03/2017 09:14 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
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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).
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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:
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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.
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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.
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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).
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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.
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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
Tyler v. Heywood, 258 Neb. 901, 607 N.W.2d 186 (2000).
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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.
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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).
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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).
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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.